RE NG HUNG SANG

HCMP 635/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 635 OF 2008

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J U D G M E N T

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1.  This is an application under Section 28 of the Jury Ordinance (Cap. 3) for an order that the Applicant, Ng Hung-Sang, be :

(1) removed from the list of jurors as long as he continues to be the Chairman and the Chief Executive of South China Holdings Limited; or

(2) exempted from serving as a juror for a period of 3 years or for such shorter period as the Court thinks fit.

2.  The Applicant was granted such an exemption for 3 years by an order of Mr Justice Gall， dated 19 February 2001.  The basis of the present application is that his business interests have increased since that date and are such that, effectively, he is indispensable and cannot therefore serve as a juror.  To do so would mean that his plans for the expansion and investment of his business would be interrupted.  Further, if he was chosen as a juror, he would be unable to concentrate on those duties because of the demands of his business interests.  He would be unable to travel at short notice, or to do the travelling needed for his business, a great deal of which is done in China, where joint venture projects are in train.

3.  In a letter from the Senior Legal Counsel of the South China Holdings Group annexed to Mr Ng’s statement, it is noted by the writer that some of the persons who are exempted under the Jury Ordinance, Cap. 3 whilst important, are more easily replaceable than he, who :

“cannot be away from our group so to speak even for one second” (NHS1 B24-26)

4.  It was submitted that even on the Applicant’s annual holiday the demands of his business ventures and interests intrude.  It was submitted further that if he is not at the beck and call of those persons with whom he is engaged in joint ventures in China, they will think him ill-mannered and he stands to lose business as a result of that perception. (Para 20, B16 and 15c – B13)

5.  It was admitted by Mr Victor Dawes, who appeared on this application, that the Applicant has no particular right to this exemption and certainly there is an acknowledgment by Mr Ng, or on his behalf, that jury service is an important civic duty, but nevertheless the tenor of the application is such that the Applicant considers himself, or portrays himself as so important, or so indispensable, that he should not have to sit as a juror himself.  In particular, if he is not available on a day-to-day basis to take major decisions himself for the listed company, it is submitted that the people of Hong Kong, generally, will suffer.  The details of his business holdings and the number of his staff are set out in the application, as are details of his working week and travel movements.

6.  It is my view after considering the matters that have been raised, that the Applicant, despite his many business interests, is not indispensable.  The infrastructure of his business and the assistance of the multitude of staff who must be at his beck and call would ensure that his absence on jury service will be little more than an inconvenience.  Many potential jurors could argue along the same lines as the Applicant; everyone is inconvenienced in their working, family and social lives by having to do jury duty.  Many of those potential jurors who apply to this court for exemption are far less able to cope with the inconveniences and difficulties than this Applicant would be. 

7.  This application is made on the basis that the rich and influential should not be subjected to the same considerations for jury duty as other people.  I have sympathy for the Applicant in light of the matters raised, but I have the same sympathy for the hundreds of prospective jurors who appear before the court, on a daily basis, facing similar problems, albeit their problems are on a smaller scale.

8.  There is nothing special about the particular problems raised, except in terms of the scale of the problems.  They are concommitant with our system of jury selection and service and have to be accepted, in order that we can ensure the rule of law is maintained in Hong Kong.

9.  I have no doubt that if the Applicant appeared in court in response to any jury summons and if he was selected for jury service, that he would not be required by any judge to attend on any long case because of his commitments.  Such an application could be made to the trial judge if and when the Applicant is required to answer a summons.  In his situation, he would be quite capable of dealing with a case of short duration, despite the difficulties he might face.

10.  As I said, the Applicant is more fortunate than most potential jurors in that despite his portrayal as being indispensable, he does have a substantial network of staff and assistants who can ensure that any period of jury service would be more easily carried out by him than by someone else, for instance, a sole proprietor, or someone who was self-employed, who would suffer real hardship if required to serve on a jury.

11.  I am not disposed to exercise my discretion in favour of this Applicant.  The application is dismissed.

Addendum

12.  In the course of his submissions, counsel for the Applicant made the rather surprising suggestion, not contained in his written submission, nor appearing in the affidavit of Mr Ng, that it would be possible for Mr Ng to arrange for one or more of his employees to serve in his stead.

13.  That extraordinary suggestion echoes the medieval practice by which, as the feudal system declined, knights who held land by military tenure as vassals to their overlord, could substitute personnel and, eventually, cash payments for the fixed number of days of military service required of them personally.

14.  Although that idea might seem superficially attractive, it would, if put into effect, sound the death knell of the jury system, not least because of the opportunity it offers for the installation of puppet jurors and rigged juries.