Thw Right To Elect Trial By Jury in Hong King - Essay Example

Download file to see previous pages 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. ...
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). ...Download file to see next pagesRead More