PLC Paper No. CB(2)619
(These minutes have been seen
by the Administration and
cleared by the Chairman)
Ref : CB2/BC/16/96
Minutes of the second meeting of the Bills Committee on the
Jury (Amendment) Bill 1997
held on Thursday, 1 May 1997 at 2:30 pm
in Conference Room B of the LegCo Building
Members Present :
Hon Margaret NG (Chairman)
Hon Ronald ARCULLI, OBE, JP
Hon Emily LAU Wai-hing, JP
Hon James TO Kun-sun
Hon Andrew CHENG Kar-foo
Hon Albert HO
Attendance by Invitation:
- The Hong Kong Bar Association
The Law Society of Hong Kong
- Mr Alan LEONG
- Member of Bar Council
- Mr Stephen HUNG
- Member of the Criminal Law & Procedure Committee
Public Officers Attending :
- Mr Stephen FISHER
- Assistant Director of Administration
- Miss Agnes CHEUNG
- Senior Crown Counsel
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
The Chairman welcomed the Administration and the representatives of the Hong Kong Bar Association (the Bar Association) and the Law Society of Hong Kong (the Law Society) to the meeting.
2. Mr Stephen FISHER briefed the meeting on the Administrations written responses to the points raised by members at the last meeting (issued to members vide LegCo Paper No. CB(2) 1996/96-97). In gist, the Administration pointed out that:
- the term "a resident of Hong Kong" in proposed section 4(1) was an improvement upon "a person resident within Hong Kong" in the existing section. Although the word "resident" was not defined in the existing legislation, it should follow its natural and ordinary meaning. The Administration would further examine the need of defining the word "resident" in the forthcoming review of qualifications for jurors;
- the Administration agreed, in principle, to the imposition of a residency requirement for jurors so as to ensure that jurors shared the same norms and values as the majority of the local population. The issue would be examined in the forthcoming review;
- there was no need to define what spoken Chinese was because neither the Official Languages Ordinance (Cap 5) nor the Basic Law provided a definition of spoken Chinese; and
- at present, it was an administrative measure to set jurors educational standard at Form 7 level in order to ensure that they had a sufficient knowledge of English to understand the proceedings of the trial. If Chinese was to be used in jury trials, there would be a case for reviewing the present standard of education required.
3. In response to Ms Emily LAU, Mr Stephen HUNG said that the Law Society supported the imposition of a residency requirement for jurors in order to ensure that jurors were acquainted with the norms and values of the local society and that a foreigner who had just arrived in Hong Kong would not be immediately empanelled as a juror. Mr Alan LEONG said that the Bar Association agreed to the Law Societys view that a residency requirement of, say three years, should be imposed on jurors. He further suggested that a person should be required to declare that he had been residing in Hong Kong for, say three years, before he would be appointed as a juror.
4. Mr Ronald ARCULLI queried why a residency requirement was necessary for jurors, taking into consideration that a judge who had just arrived in Hong Kong was allowed to try cases immediately. Moreover, he opined that persons who were engaged in merchant banking business might be more suitable to be empanelled as jurors for cases relating to commercial fraud. If a residency requirement were to be imposed, it might limit the number of suitable persons to be selected as jurors. In response, Mr Stephen HUNG said that it might be to the benefit of the defendants if jurors were acquainted with the norms of the society and hence the upbringing and psychology of the defendants.
5. In this connection, Ms Emily LAU asked and Mr FISHER said that under the existing arrangement, when a person who satisfied the educational requirement applied for a Hong Kong permanent identity (HKID) card, his name would be placed on the jury list.
6. The Chairman and Mr Albert HO then asked and Mr FISHER told the meeting that a preliminary review had been conducted and it was found that there were practical difficulties which could not be resolved readily, such as manpower constraints in taking out from the existing jury list those who were unable to satisfy the residency requirement. Moreover, there was a need for a new computer system and that new forms for applying for a HKID card had to be designed to include a statement relating to the residency period if the residency requirement was to be introduced. Hence, the Administration considered that the residency requirement should not be imposed at the present stage and the issue should be examined further in the forthcoming review of qualifications for jurors. In response to Mr Andrew CHENG, Mr FISHER said that a comprehensive review of the jury system would be conducted around 12 to 18 months after jury trials conducted in Chinese had been introduced in the High Court.
7. With reference to Mr ARCULLIs suggestion that it might not be necessary to impose the residency requirement on jurors if the defendants concerned were also new arrivals, the Administration agreed to consider the matter in the future review.
Definition of spoken Chinese
8. In response to the Chairman, Mr FISHER reiterated that neither the Basic Law nor the local legislation provided a definition of spoken Chinese. Moreover, he assured the meeting that there had not been any problem since the use of Chinese language in court proceedings in 1970s. The Administration therefore did not consider it necessary to include a definition of spoken Chinese in the Bill.
9. Referring to the proposed section 4 (c) of the Bill and section 5 of the Official Languages Ordinance (Cap 5), Mr James TO asked and Mr FISHER said that theoretically speaking, a judge might use other dialects in the proceedings, though it was unlikely in practice because the judge would generally consider whether all parties concerned could also understand that language/dialect to be used in the proceedings. In this connection, Mr Alan LEONG told the meeting that the High Court had recently issued a Practice Direction stipulating that only English or Cantonese should be used in the proceedings. Mr James TO and Mr Albert HO then suggested and the meeting agreed that the Administration should examine the need of providing the definition of spoken Chinese as Puntei or Putonghua in the forthcoming review.
10. Mr Stephen 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 in order to ensure that jurors had a sufficient knowledge of English to understand the proceedings of the trial. The arrangement was implemented administratively. He agreed that if Chinese was to be used in jury trials, there was a case for reviewing the present educational standard required since those who had attained a lower educational standard, say Form 5, should be able to follow the trial proceedings in Chinese and this would better accord with the principle of trial by ones peers. However, he stressed that the existing educational standard should not be lowered at the present stage because of the practical difficulties involved, such as the limited capacity of the existing computer system and the undesirability of maintaining two lists of jurors - i.e. one list with a higher standard of education (i.e. Form 7) for English trials and another list with a lower standard (say Form 5) for Chinese trials.
11. In reply to Ms Emily LAU, Mr FISHER clarified that that it was not required in law that a person must have attained an educational level of Form 7 before he was qualified to serve as a juror. The existing administrative arrangement to set the academic level at Form 7 was only to provide an objective means for assessing a persons language proficiency and hence the suitability for appointment as a juror. He confirmed that irrespective of race and religion, any Hong Kong resident between the ages of 21 and 65, who had attained an academic level up to Form 7, would have his name put on the jury list. In further reply to Ms Emily LAU, Mr FISHER assured the meeting that the Administration also agreed to the principle of "trial by ones peers". However, having regard to the practical situation, the Administration maintained that a more gradual approach should be adopted in moving towards the ultimate objective of people being tried in their own language.
12. Concerning the statutory basis for the existing administrative arrangement, Mr FISHER referred to section 7(1) of the Jury Ordinance (the Ordinance) which provided that:
"As soon as it appears to the Commissioner that any person is-
- qualified to serve as a juror under section 4; and
- not exempt from service as a juror under section 5,
he shall cause to be served on such a person in the form of Form 2 in the Schedule."
He pointed out that although there was no specific statutory provision for setting an educational standard to ensure language proficiency, the present administrative arrangement was not an unreasonable measure to implement sections 7(1) and 4 of the Ordinance. The Assistant Legal Adviser then briefed the meeting on his paper (issued to members vide LegCo Paper No. CB(2) 2038/96-97) and advised that:
- it was difficult to challenge, on the grounds of "Wednesbury unreasonableness", the administrative decision of setting Form 7 as a minimum standard relating to English language proficiency; and
the proposed section 4 gave a lawful discretion to the Administration to set the minimum language proficiency standard at Form 7 level.
Moreover, the Assistant Legal Adviser pointed out that a person could also apply to the Registrar of the Supreme Court (the Registrar) requiring his name or the name of any other person be added to the list of jurors under section 9 or 11 of the Ordinance.
13. In response to the Chairman, Mr Stephen HUNG and Mr Alan LEONG said that the legal profession did not object to the existing administrative arrangement of setting the minimum language proficiency standard at Form 7, provided that a review would be conducted in due course to lower the educational standard when Chinese was to be used in court proceedings. In addition, Mr LEONG said that the Bar Association opined that in order to enhance the transparency and refrain the Registrar from having excessive power, certain objective criteria for appointment of jurors should be provided in the legislation.
14. In reply to further questions from the Chairman and members, Ms Emily LAU, the Chairman and Mr James TO asked and Mr FISHER explained that the policy intention behind the proposed section 4A(1)(a) was to empower the Registrar or the Commissioner to obtain, for the purpose of ascertaining whether a person had a sufficient knowledge of the official languages, the name and the number of the identity card of any person who had got a grade of pass in an examination of the English language or an examination of the Chinese language, or an examination conducted in English or Chinese. The examination referred to in the proposed section included both public and private examinations. Ms Emily LAU then suggested and the Administration agreed that Committee stage amendment (CSA) would be moved to spell out clearly the policy intention for avoidance of doubt.
15. Mr James TO and Mr Albert HO asked and Mr FISHER told the meeting that at present, the Administration did not check whether or not a person had a criminal record before placing his name on the jury list. The Administration did not intend to change the current arrangement on the grounds that any routine checking for criminal record might constitute an unwarranted invasion of the privacy of the persons whose names were to be put on the list. Moreover, since there were around 260 000 persons on the list, any vetting procedure would create a tremendous workload on the departments concerned. In further reply to Mr TO, Mr FISHER clarified that the Administration would not knowingly include a person who had a criminal record on the jury list. To address Mr TOs concern that a person who had a criminal record might be appointed as a juror, Mr FISHER said that section 29 of the Ordinance provided the right for challenge of jurors by the accused and the counsel. Moreover, the judge or the Commissioner would further decide whether a person was of good character before empanelling him as a juror. The Chairman then suggested and the Administration agreed to provide in writing after the meeting the current practice regarding the checking of a jurors criminal record.
16. In this connection, Mr ARCULLI and the Chairman asked and the Assistant Legal Adviser confirmed that pursuant to section 29 of the Ordinance, a person arraigned on an indictment for any offence might challenge not more than five jurors without cause and any juror or jurors for cause. In reply to the Chairman, Miss Agnes CHEUNG told the meeting that in general, there was no restriction on the causes for challenging jurors and it all depended on the case in question.
Exemptions from service
17. Mr Andrew CHENG and Mr Albert HO asked and Mr Stephen FISHER explained that unlike Members of the Executive Council, the Legislative Council and the Municipal Councils, district board members were not responsible for making laws and hence they were not exempt from jury service under section 5 of the Ordinance. Concerning justices of the peace, since they had to execute laws, they were therefore included on the exemption list. As for social workers and public officers carrying out duties in the Government Flying Services, they were exempt from service as jurors because of their engagement in important duties to the effect that they could not set aside their jobs for a certain period of time in order to serve as jurors.
18. In reply to Mr James TO, Mr FISHER explained that since public officers serving in the Intellectual Property Department had to involve in initiating prosecution action against any person suspected of breaching copyrights, they were exempt from jury service. Mr TO then expressed concern that there might be conflict of interests if a senior staff member of the Securities and Futures Commission (SFC), who might have been involved in initiating prosecution action against a particular person, was subsequently summoned to act as a juror in his case. He therefore suggested and the Administration agreed to consider whether it was necessary to exempt senior staff of SFC from jury service.
19. Referring to sections 5 (h) and (n) of the Ordinance, Mr TO asked and Mr FISHER explained that at present, clergymen, priests, ministers of any Christian or Jewish congregation and those persons who were vowed and full- time members of any religious orders living in monasteries, convents or other such religious communities were exempt from jury service under the said provisions. Any person who only engaged in part-time religious services would not be exempted. Mr TO then proposed and the Administration agreed to consider whether clerics of the Muslim and the Hindu faiths in Hong Kong should be exempt from serving as jurors.
20. Mr Albert HO then asked and Mr FISHER explained that since jury trials were not conducted in district courts, the spouse of the judges of district courts were not exempt from jury service. Mr HO pointed out that since the provisions of the Ordinance also applied to the selection of jurors at a coroners inquest, the spouse of a coroner should be included on the exemption list as well. The Administration agreed to consider the proposal.
21. Members present then considered and agreed to the amendments proposed by the Administration to sections 2, 4 and 5 of the Ordinance.
22. To conclude, the Chairman said that the Administration would provide after the meeting written responses to the points raised by members as per the above paragraphs and on the scope and timing of the proposed review of the jury system, as well as the CSAs to be moved by the Administration. The Chairman further suggested and members present agreed that subject to the Administrations written responses, the next meeting scheduled for 8 May 1997 would only be held if necessary. The Chairman then thanked members, the Administration and the Secretariat for their contributions to the Bills Committee.
23. There being no other business, the meeting ended at 4:45 pm.
Provisional LegCo Secretariat
17 November 1997
Last Updated on 4 December 1997