• 公道人心|戴啟思
  • 2020-06-13    

 

Jury Trial-‘The Lamp of Freedom'

The as-yet-unseen National Security law is nearly upon us. The Chief Executive, senior government officials, some legislators and many wealthy business people have joined together in evangelical praise of the mysterious law as if selling a cure-all patent medicine. 'Do not trouble yourself too much about the ingredients', they say, 'Get it down your neck! You know it will be good for you!'

Because no one knows for sure what the new law will contain, there has been a lot of guessing going on about its content and how it will fit in with the existing criminal justice system.

There has been a surmising about jury trials. It seems that they might disappear for national security offences. They might go because a new judge-alone National Security court is established. The alternative is that the existing justice system remains, but jury trial is removed for National Security offences.

If jury trial were not to be available for national security offences, that would be a tremendous shock to the criminal justice system. Article 86 of the Basic Law says, "The principle of trial by jury previously practised in Hong Kong shall be maintained." As I shall show below, it has always been the case that if the prosecution sought a substantial jail term of more than seven years, a conviction after trial by jury was the only way to achieve that.

The old colonial national security offences-treason and sedition, being the main ones- could be tried by a judge and jury. If the penalty for an offence was fixed by law so that a judge had no discretion over sentencing an offender, e.g. the penalty was death or life imprisonment, the offence had to be tried with a jury. Treason was such an offence.

Even in times of national crisis, English juries would deal with these kinds of cases. Throughout the Second World War German spies and traitors were tried at the Old Bailey in London and sent on their way to the gallows with a jury's guilty verdict behind them.

In Hong Kong there were no jury trials during the Japanese occupation but when the British returned and restored the courts, one of the first significant court cases heard was the trial by a jury of Kanao Inuye, a Japanese soldier.

Although he served the Emperor of Japan, he had Canadian nationality. He was tried, convicted and sentenced to hang for the offence of treason. The prosecution case was that because he owed allegiance to the King of Canada, George VI, he could not serve in the Japanese Army.

No one argued then that juries were not fit to deal with national security offences. What has changed?

In 2020 we have no death penalty but offences that require a sentence fixed by law, such as a life sentence for murder, must be tried with a jury.

In other cases, the Secretary for Justice chooses whether an offence is tried with a jury in the Court of First Instance or is dealt with by a District Judge or a magistrate. These last two judicial officers sit without a jury and can impose prison sentence up to a maximum of seven and two years respectively

The decision on venue made by a prosecutor is primarily based on the likely sentence for an offence if the defendant was convicted.

Take, for example, the offence of theft. It carries a maximum of 10 years imprisonment. If the prosecutor thinks a theft crime is grave and worth at least seven years behind bars, the case will go to the Court of First Instance for a jury trial.

If the prosecutor reckons that another offence of theft will merit more than two years imprisonment but less than seven, it will go to the District Court. A magistrate will try all other cases.

There is a trade-off that the prosecutor makes every time he or she sends a case for trial by jury. In return for being able to secure a more substantial sentence if there is a conviction, there is a possibility that the jury might disagree with the decision to prosecute or might take exception to the way the case has been conducted and acquit the defendant despite the evidence.

The legal, technical name for a jury acquitting despite overwhelming evidence is 'jury nullification' because, by acquitting the defendant, the jury cancels out the decision to prosecute.

Jury nullification occurs only very rarely as juries do not second guess a decision to prosecute a person for straightforward crimes such as armed robbery, rape or commercial crime. Jurors generally listen to the evidence and apply the law conscientiously as directed by the judge.

When juries go 'rogue' and reject an overwhelming case, it is because they disagree with the decision to put the defendant in the dock in the first place.

Decisions to prosecute which appear to have been politically motivated or designed to secure government interests above all other considerations can result in juries acquitting in the teeth of the evidence. National security cases have the potential to produce surprise acquittals.

To prove my point, I need only go back about forty years.

In 1982 the United Kingdom fought with Argentina over the Falkland Islands. A British submarine sank an Argentinian battleship called the General Belgrano with over three hundred sailors on board the ship losing their lives. As there had been no formal declaration of war, both sides were inhibited from conducting overly aggressive actions. The sinking of the General Belgrano had to be justified as a necessary act in defending the Falklands outside the conventional rules of war

The official U.K. line was that the Argentinian ship was moving towards a maritime exclusion zone around the Falklands and so it presented an imminent danger that justified sinking it.

The reality was that the General Belgrano had started to manoeuvre away from the exclusion zone and, arguably, it could not be considered a threat under the rules of engagement that were then in place. If that were so, the sinking might not be justified.

In 1984 a civil servant in the Ministry of Defence, Clive Ponting, disclosed confidential papers that contradicted the official government line to a politician. The politician then made the cover-up of the sinking public by making a statement in Parliament.

The police arrested Ponting for a national security matter-in Chinese national security terms it would be called 'theft of state secrets'-an offence of breaching the Official Secrets Act 1911.

Ponting was tried before a judge and jury. He admitted all the essential facts in the case, including sending the papers to the politician. His defence was that disclosure of the truth was in the public interest because the conflict with Argentina had ended and it was not right that an official lie about such an important matter should continue to deceive the British public.

The trial judge considered the relevant law. He concluded that the public interest was what the Government of the day said it was. He told the jurors that Ponting's defence was not tenable and that they should convict him. The jury listened to the judge, retired to consider their verdict and then returned to court to declare him 'Not Guilty'.

Although juries do not give reasons for their verdicts, the inference to be drawn from the acquittal was that ordinary folk do not like Government lying to them. Although a legal case existed anyway for sinking the General Belgrano outside the exclusion zone, the jury resented Mrs Thatcher's Government lying to them to avoid having to make out a much more complicated case for sinking the ship to the public.

If the thought of independent-minded juries acquitting defendants in national security cases despite the evidence is the real concern here, then someone should have the guts to say it out aloud.

The last word goes to a distinguished common law judge, Lord Devlin, who, as a barrister appeared in many jury trials and later, as a judge, tried them.

"The object of any tyrant would be to overthrow or diminish trial by jury, for it is the lamp that shows that freedom lives."



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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