Electing Trial by Jury in Hong Kong - Essay Example

? The Right to Elect Trial By Jury in Hong Kong By Contents Contents 2 Introduction 3 The Rationale for Trial byJury 4 Historical Overview 4 The Merits of Trial by Jury 4 The Rationale for the Decision in Chiang 6 Background 6 Chiang’s Ruling: No Right to Jury Trial in Hong Kong 7 Conclusion 13 Bibliography 14 Question 2: In Chiang Lily v Secretary for Justice (2010) HKCU 698 and Chiang Lily v Secretary for justice (2009) 6 HKC, both the Court of Final Appeal and the court of Appeal agreed that " defendants do not have a right to elect for a trail by jury". How far do you agree with the courts' decisions? Introduction The right to a trial by jury is described as a “unique institution” introduced by the Common Law of England and transported to its colonies during the colonial era (Vidmar, 2000, pp. 1-2). Indeed not only did the British colonies retain the jury systems after obtaining independence from the British colonies, but a number of other jurisdictions in Europe and elsewhere adopted some form of jury trial (Vidmar, 2000). Hong Kong retained the right of jury trial in its Basic Law (Hong Kong Basic Law, 1997, Article 86). However, a recent decision by the Hong Kong Court of Appeal and the Final Court of Appeal in Chiang Lily v Secretary for Justice (2009 and 2010 respectively) confirm that the right to a jury trial in Hong Kong is not an absolute right. This paper analyzes the decision of Chiang Lily, specifically the determination that a right to jury trial is not an absolute right. It is argued that a right to jury trial is a fundamental right, but it is only necessary to meet the aims of justice if it can effectively serve its intended purpose. The intended purpose of a jury trial was to sustain and support the notion of a fair and public trial by one’s peers (Lai, 2010). The main question is therefore whether or not limitations on the right to a trial by jury subvert the concept of a fair and public trial. This paper examines the rationale for a jury trial and the rationale for Chiang Lily’s decision and determines the extent to which Chiang Lily’s decision is compatible with or incompatible with the rationale for a jury trial. The Rationale for Trial by Jury Historical Overview Trial by jury originates out of the Magna Carta of 1215. At the time the King sat in judgment of the courts and thus the jury system was introduced to safeguard against the risk of complete “despotism” (Spooner, 2006, p. 14). Therefore, the introduction of trial by jury was at once intended to ensure fairness and transparency of the justice system. It is therefore hardly surprising that the jury trial has been described as an “ancient right” and a “birthright” (Kingswell v R, 1985, Para. 49). Initially pressured by judges to bring a certain verdict, jurors enjoyed full and unrestrained discretion by the 16th century. Jurors was merely bound to follow their own conscience and their own understanding of the law irrespective of the judiciary’s opinion on the law or fact (Ostrowski, 2001). Thus by the 16th century, the jury system was firmly established as a bastion between corrupt officials, unfair laws and judicial pressure to interpret the facts of the case a specific way. This is the legacy that informs the current legal system and has done so since its inception. The Merits of Trial by Jury The merits of a jury trial and thus the rationale for preserving the trial by jury is captured in the words of Madam Justice L’Hereux-Dube of Canada’s Supreme Court. Madam Justice L’Heureux-Dube stated that: The jury, through its collective decision making, is an excellent fact finder; due to its representative character, it acts as the conscience of the community; the jury can act as the final bulwark against oppressive laws or their enforcement; it provides a means whereby the public increases its knowledge of the criminal justice system and it increases, through the involvement of the public, societal trust in the system as a whole (R v Sherratt, 1991, p. 523). Thus the strength of jury trials is founded on principles of democracy. It is thought to facilitate the public’s participation in the criminal justice process. It also presupposes that jurors represent the conscience of the community and the emphasis is on jurors seeking justice where they perceive a law may be too oppressive or too harsh. However, the converse may be true as well. A jury may determine that a law is not harsh enough and may pursuant to this concept convict a defendant of a more serious crime or of a crime that the evidence does not support. Therefore although, juries can be guardians of justice, they can also be guardians of injustice. Nevertheless, Lord Devlin (1970) identified at least five advantages of jury trials that speak to its merits and thus its rationale. First, juries are better than judges at discerning and understanding the defence arguments. Secondly, jurors are better than judges in discerning the credibility of witnesses who are for the most part their peers. Thirdly, jurors are “better able to see the justice of a case, as opposed to the judge” who is “sworn to strictly follow the law” (Lord Devlin, 1970, p. 154). Fifthly, jurors held to “ensure the independence and quality of judges” (Lord Devlin, 1970, pp. 158-159). Finally, juries are guardians of justice in that they ensure that unfair and oppressive laws are not enforced (Lord Devlin, 1970). The arguments in favour of the preservation of the jury trial therefore center around concepts of fairness and justice and other democratic values. These arguments tend to assume that judges cannot be impartial in that they cannot segregate the facts from the law. These arguments also assume that the ends of justice require an understanding of the defence’s case and that the defence does not deliberately frame its defence in a way that only jurors can understand. No doubt, if judges alone tried a case and trial by jury were abrogated throughout the common law and civil law countries, defendants would ensure that their arguments and strategies were such that judges could understand and be persuaded by them. The Rationale for the Decision in Chiang Background Arguably, the merits and thus rationale for a trial by jury presupposes that jurors will be culled from a jury pool comprised of potential jurors who are capable of being impartial and to some extent analytical. It is based on this presumption that the potential jury pool in Hong Kong is examined. First, it must be noted that at least 74 percent of criminal trials at first instance are conducted in English in Hong Kong where a majority of potential jurors do not speak English. This presents an immediate problem which law of Hong Kong seeks to address by mandating that jurors are only eligible for service if they have achieved at least a Form 7 education (Gaylord et al 2009). There are other factors that limit or reduce the potential jury pool in Hong Kong. Numerous professions are ineligible for jury duty. The exempt professions are students who are in school full-time, pilots, crews on ships, doctors, dentists, veterinarians and many others. As a result of the English language barrier and the long list of excluded professions, the jury pool in Hong Kong is estimated to be a mere 7 percent of the population (Gaylord, et al, 2009). Gaylord et al (2009) explain that: This small jury pool does much to explain why the use of juries for criminal cases is so much more restricted in Hong Kong than other common law jurisdictions such as England and Wales (p. 159). Thus jury trials have been difficult to sustain as a key constitutional right in Hong Kong. The constitutional right to a fair trial is no more important than the constitutional right to a speedy trial. The Basic Law 1997 reserves for the people of Hong Kong the right to a speedy trial (The Basic Law 1997). This right is therefore a constitutional right and just as important as any other constitutional right (Chan, 1997). Chiang’s Ruling: No Right to Jury Trial in Hong Kong Given the background against which the decision in Chiang was rendered it would therefore appear that given the short supply of jurors in Hong Kong, the Hong Kong’s appellate courts in Chiang were forced to determine whether or not the interest of justice was served by limiting the right to a speedy trial or limiting the right to a trial by jury. It would appear that the courts found in favour of a speedy trial. Had the appellate courts found it necessary to abort the right to a speedy trial in order to preserve the right to a jury trial, innocent defendants would have criminal charges hanging over their heads into the indefinite future. The courts’ dockets would become even more inundated with unresolved cases and the process of justice would be delayed. It has been argued time and time again that “justice delayed is justice denied” (De Burca & Weiler, 2001, p. 219). The perception is that when trials are delayed court dockets become backlogged, thus there is a determination to rush or fast track these cases to such an extent that some cases are dropped to the detriment of victims, or some defendants are forced to take guilty pleas when they have issues that ought to be adjudicated. Moreover, defendants who should be remanded in custody awaiting trial are released on bail to avoid prison overcrowding (De Burca & Weiler, 2001). Thus, the right to a speedy trial is important because, when it is denied, the quality of the conviction and acquittal, the trial and the evidence is called into question. It therefore follows that opting to deny jury trials in favour of preserving the right to a speedy trial is a sound and preferable choice. The right to a trial by jury is not considered a universal human right. The UN’s Declaration of Human Rights 1948 does not provide for a right to a jury trial. It does however speak to the right to a fair and public trial by an impartial tribunal (UN Declaration of Human Rights, 1948, Article 10). A fair and impartial tribunal obviously refers to a court and since there is no specific mention of a jury trial, it can be assumed that a trial by a judge would meet the requirements of Article 10 of the UN’s Declaration of Human Rights. Moreover, the UN’s International Covenant on Civil and Political Rights 1966 does not provide for a right to a trial by jury. The 1966 Covenant does however require that any person charged with a criminal offence shall be entitled to a fair hearing without delay (International Covenant on Civil and Political Rights, 1966, Article 9). Hong Kong is a party to the International Covenant on Civil and Political Rights (Ghai, 1999). The International Covenant on Civil and Political Rights 1966 was implemented by Hong Kong’s Bill of Rights Ordinance (Rai, 1993). Thus the Chiang appellate courts were acting in accordance with international conventions on human rights and Hong Kong’s Bill of Rights Ordinance. It would therefore appear that the right to a jury trial is not an absolute right, at least by universal standards of human rights. Indeed, the right to a fair trial and public trial without unnecessary delay appears to be a universally accepted fundamental human right. In fact, Lord Devlin who had argued in favour of and defended the right to a jury trial has acknowledged that trial by judge alone is not altogether inconsistent with the ends of justice. Lord Devlin stated that: The great improvement during the present century in the behaviour of the judiciary has very naturally led to the questioning of the need to continue the jury as a safeguard. Many would say that the modern judiciary is just as capable of protecting liberties of the subject, as they seem them, as the jury (Lord Devlin, 1986, p. 311). Be that as it may, Lord Devlin (1986) does go farther to note that the minds of judges and jurors could not be farther apart. According to Lord Devlin (1986) judges and jurors look at things differently and judges do not see things from the perspective of the lay person. In calling upon judges to analyze and interpret fact from the perspective of the ordinary person may result in a miscarriage of justice. Moreover, according to Lord Devlin (1986): Trial by jury forms part of the political compromise we have made between arbitrary and popular government. ‘Arbitrary’ in this confrontation means the rule by those, e.g. the judges, who are not answerable to the electorate (p. 311). Nevertheless, Lord Devlin has tempered his approach to the merits and rationale for jury trials. By his own admission, the need to safeguard against the arbitrary exercise of powers is contained by the fact that judges today have demonstrated a remarkable ability to act judiciously and in the interest of justice. Judges are not elected and are thus as independent as jurors are. The fact that they do not think the way that jurors do should not be a bar to upholding the law and an oath to be impartial. In fact, after all is said and done, a jury is more likely to act on sheer emotion than on the facts and the law. The right to a jury trial is not an absolute right in England where the jury trial was conceived (Kirtzer, 2004). In civil trials the right to a jury trial has been scaled back significantly. Only where an individual is charged with an indictable offence or an offence triable either way, does the defendant have a right to a jury trial. In fact for offences that are triable either way, the defendant only has the right to elect trial on indictment or summary trial. If the defendant elects summary trial his or her right to a jury trial is lost (Kirtzer, 2004). It therefore follows that even in England, where the right to a jury trial is stronger than elsewhere, the right to a jury trial is not an absolute right. English litigants have been experiencing a tempering of the right to jury trial as evidenced by the abrogation of jury trial in defamation cases and summary trials. When the developments in England are considered, it can be argued that Hong Kong is following England’s lead, although it has expanded on the relinquishment of the right to a trial by jury. Summary offences in Hong Kong are heard by Magistrates. Summary offences are also heard by the District courts who typically hear indictable offense. Indictable offenses are divided among the District Court where a judge alone may hear the offence. More serious indictable offenses are heard by the Court of First Instance by a judge and a jury (Criminal Procedure Ordinance 1997). It is for the prosecution to determine the mode of trial relative to an indictable offence (Chiang 2009; 2010). The defendant however, may challenge the prosecution’s decision to try the matter by the District Court by virtue of a judge alone rather than in the Court of First Instance where the trial is by a judge and jury. Upon hearing the defendant’s challenge, the appellate courts in Chiang (2009; 2010) ruled that the right to a jury trial was not an absolute right and thus, the defendant had no right to insist on a jury trial. The utility of jury trials have come under increasing scrutiny and have been the subject of debates for a long time. Researchers have conducted studies particularly relating to the bias manifested by juries and thus raises the issue of whether or not the right to a jury trial is a sacred right. For instance, Johnson (1985) conducted a search of the literature and identified several studies that reveal that white jurors are more likely to convict a black defendant than they are to convict a black defendant. Johnson (1985) also argued that existing rules and laws are insufficient to guard against jury bias. Wrightsman (1978) also argued that the value of the jury system is compromised by a number of serious concerns. To begin with it is doubtful that jurors are able to ignore “pre-trial publicity” (Wrightsman, 1978, p. 137). This is particularly problematic in the information era where advancement in technology has facilitated access to all kinds of information and media. It is difficult to imagine a fair and impartial jury unless the jury is sequestered. However, this is costly and could further compromise the jurors’ ability to be impartial if they are alienated from their families and jobs and have little or no access to the public or media outlets. The jury could become bored and resentful and may simply agree on a verdict as quickly as possible in order to escape solitude and isolation. Wrightsman (1978) also identified a number of other problems that are associated with jurors. These problems include the inability to disregard inadmissible evidence that is somehow revealed at the trial or elsewhere. Thus the jury may render a verdict that is not based on the evidence properly and lawfully admitted at the trial. Wrightsman (1978) also argues that juries have difficulties reconstructing the trial from memory” and can have difficulties deliberating “in a rational, evidence-oriented manner” (p. 317). It is also doubtful that juries are more partial to the defendant than a judge sitting alone. The value of a jury trial is that jurors are more likely to identify with the defendant as the defendant is a fellow citizen. However, Levine (1983) analyzed several jury verdicts and compared them with the verdicts of judges in the District of Colombia. Levine’s (1983) study revealed that juries convicted at a greater rate than judges sitting alone. It therefore follows that the value of jury trials is questionable. There is no definitive evidence suggesting that jury trials improve the chances of fairness in a criminal justice system. As a result, it is difficult to disagree with the decision in the Chiang case. The ancient concept of jury trials arose out of a need to ensure that the King did not judge the guilt or innocence of the ordinary man. However, given the independence of the judiciary in that they are not political entities, the need for jury trials is outdated. Conclusion It is however, unfair that the prosecution has been conferred with the right to determine the mode of trial for the defendant. The prosecution is the accuser and as such sits on the opposite side of the defendant in the court of law. It would therefore appear to be unfair that the opposition has the right to choose the mode of trial. It is conceivable that the prosecution would choose a mode of trial that is favourable to him or her. The difficulties with gathering jury pools with sufficient numbers and frequency to support a jury trial system and the corresponding dangers of delaying trials, it seems only fair that jury trials have been reduced in Hong Kong. It therefore explains and rationalizes the decision by the appellate courts in Hong Kong the right to a jury trial is not an absolute right (Chiang 2009; 2010). However, if the defendant is denied the right to choose trial by jury, the decision should also be denied the prosecution. The parameter and guidelines for jury trial should be defined by statute in order to place the parties on an even keel. Bibliography Chan, J. 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