RE FANG KAR WAI AND ANOTHER

Criminal Case 1990, No.177

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Ex parte FANG KAR WAI and YIM KA LAI

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J U D G M E N T

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1. The trial of this case lasted fifty-two days spanning almost over three months from 24th April to 21st July 1992. After the trial had concluded, three jurors applied to me by letter to have the allowance payable to them for having served as jurors increased. I appointed a date to hear their applications, and notice of the hearing was given to all the seven jurors in the case so that whoever wished to make representations to me would be able to do so. However, only two of them, Miss FANG Kar-wai and Miss YIM Ka-lai appeared before me in person. As the Crown and the Defendants are not concerned with this matter, and in order to save costs, they were not notified of the hearing or indeed these applications.

Section 31 of the Jury Ordinance, Cap.3 provides that:-

"(1) A person who serves as a juror in any case, criminal or civil, or in any inquiry under the Coroners Ordinance (Cap.14), shall be paid an allowance, at such rate as the Governor may prescribe by order published in the Gazette.

(2) In addition to the allowance paid to him under subsection (1), a person who serves as a juror may be paid an additional allowance under this subsection if -

(a) in the case of proceedings in the High Court, the Chief Justice or the trial judge or

(b) in the case of an inquiry under the Coroners Ordinance, the Chief Justice so orders.

(3) The allowance paid to a person under subsection (2) shall be of such amount as the Chief Justice or the judge may direct, but shall not exceed such rate as the Governor may prescribe by order published in the Gazette."

2. In the Allowances to Jurors Order made by the Governor and effective from 12th February 1971, it is provided that the allowance payable under s.31(1) of the ordinance ("the juror allowance") shall be $90, and the rate of allowance which may be paid under s.31(2) of the Ordinance ("the additional allowance") shall not exceed $90, in respect of each day or part thereof.

3. It can be seen therefore that the legislature has delegated the power to the Governor to fix the appropriate rates of the juror allowance and the additional allowance. If there is any complaint that in view of the escalating inflation since 1971 when the Order was made that the rate of the juror allowance or the additional allowance is too low, it is either for the Governor exercising his powers under s.31 of the Ordinance or for the legislature to make the necessary alteration. The courts are to follow and administer the law. I shall return to the question of inflation later.

4. While the juror allowance of $90 per day is paid as a matter of course, the additional allowance can only be paid if the Chief Justice or the trial judge so orders. How then should a judge exercise his discretion under s.31(2)? Only the limit of the additional allowance is fixed by the Order to be not exceeding $90 per day or part of it. As to the criteria upon which a juror should be paid any additional allowance and how much of the $90, the Ordinance does not make any provision. Nor is there any reported case in Hong Kong touching on this topic.

5. I consider the problem by looking into a number of issues, namely,

(1) Should a person be paid for his services as a juror or should he be paid only for his expenses and loss for serving as a juror?

(2) What kinds of expense and reimbursement of loss should be paid to the juror?

(3) Should the additional allowance be ordered by the court whenever the juror allowance is insufficient to cover the juror's expenses and loss?

(1)Should a person be paid for his services as a juror?

6. Section 31 as well as the Allowances to Jurors order are silent as to the reason why the juror be paid the allowances. Section 37 of the Ordinance provides that in cases not provided for in the Ordinance, the law in force in England relating to jurors and juries shall, in so far as the same does not conflict with the provisions of the Ordinance, have force and effect within Hong Kong. Although it may be argued that since s.31 of the Ordinance makes provisions for jurors' allowances, s.37 of the Ordinance applying the English law has no application, nonetheless it is instructive to look at the law on the same subject in England from which the jury system originated.

7. The law relating to jurors and juries in force in England is contained in the Juries Act 1974 and the Jurors' Allowances Regulations 1978. Section 19 of the Juries Act is the only section in the Act to deal with jurors' allowances. Such allowances are paid under the following heads, namely,

(a) for travelling [s.19(1) (a) of the Act],

(b) for subsistence [s.19(1) (a) of the Act], and

(c) for financial loss, where in consequence of a juror's attendance he has incurred any expenditure, other than on travelling and subsistence, to which he would not otherwise be subject or he has suffered any loss of earnings, or of benefit under the enactments relating to social security, which he would otherwise have made or received (s.19 (1) (b) of the Act].

The rates of the allowance for each head are provided in the Jurors' Allowances Regulations, 1978, to which I shall return later.

Section 19(5) of the Act provides that:-

"Save as provided by the Coroners Act 1887, no person shall be entitled under any Act other than this Act or under any rule of law, custom or agreement to payment for his services as a juror."

8. It is therefore clear that the three categories of allowance are the only money that can be paid to jurors. They are not entitled to any other payment. The three kinds of allowance are for compensating the juror for his out of pocket expenses and financial loss and not for his services rendered as a juror. The allowances are money for money lost and not for the services themselves. Although the Hong Kong legislation is silent on this point, I would have thought that the invariable sum of $90 for the juror allowance cannot be intended to pay the juror for his services, nor should the additional allowance be made for the same purpose. Not to be inconsistent with the English law may not be a good reason for saying so. However the sum of $90 being payment for the services and effort and compensation for the trouble and inconvenience seems unrealistic and blatantly inadequate. When a person serves as a juror, he renders invaluable service to society, without which the public administration of justice under our system cannot be operated or operated successfully, at least in cases where a jury is required. Further, if a juror were to apply to court for the payment of the additional allowance on the basis of his services as a juror, the court would be put into a difficult, if not impossible, position to try to put a price tag on the value of such services. Had the legislature intended to pay the juror allowance or the additional allowance for the juror's services, it would have said so clearly.

(2)What expenses and loss are covered?

9. What then should the juror allowance and the additional allowance cover? Our law does not make any specific provision on this. The English legislation, on the other hand, is very clear. The allowances provided for in that legislation are under the three categories I mentioned.

10. Formerly, the rates of the three categories of allowance were prescribed by the Lord Chancellor with the consent of the Minister for Civil Service by statutory instrument, for instance, the Jurors' Allowances (Amendment) Regulations 1974 and the Jurors' Allowances Regulations 1977. However, s.2(1) of the Administration of Justice Act 1977 enables the rates to be determined administratively, although the payments are still subject to conditions prescribed by statutory instrument, the current one being the Jurors' Allowances Regulations 1978, and the rates are now determined by Home Office Circulars. See Vol. 22, Halsbury's Statutes, 4th Ed., pp. 492-493. The rates are regularly reviewed: see Vol. 40, Atkin's Court Forms, 2nd Ed. (1987 Issue), pp.89-90. Regarding travelling allowance, various daily rates are provided for various forms of travelling, by public conveyance, by hired vehicle, by private motor-cycle and by private car. Either the juror shall be reimbursed the actual fare paid by him on public transport, or the miles travelled and the engine capacity of the private conveyance used are used as the bases for arriving at the travelling allowance not exceeding a certain rate. Subsistence allowance payable is calculated at rates fixed on the basis of the period of hours on any one day during which a juror is necessarily absent from his place of residence, business or employment for serving as a juror. The financial loss allowance shall be the amount of the expenditure (other than on travelling and subsistence) and loss incurred, but it shall not exceed the different rates provided for different numbers of hours. The court is also given a discretion to increase the financial loss allowance payable to a juror who has served on more than 10 days, subject to the limit allowed.

11. The three kinds of allowance are for compensating the juror for his out of pocket expenses and financial loss. It appears to me that apart from his services as a juror which are not meant to be paid for, it is difficult to imagine that the payment of allowances under our 6.31 is for any purpose other than to reimburse the juror under the three categories. The three categories of allowance should be quite comprehensive to cover all that may be necessarily incurred by a person as a juror. I am therefore of the view that s.31 of our Ordinance is intended to make provision for allowances to cover the expenses and loss under the same three categories. If I am wrong about this, then any expenses and loss which cannot be slotted into the three categories will still be covered by the juror allowance and, if necessary, the additional allowance.

12. In the normal course of events, travelling expenses are those which are incurred for travelling from either the place of residence or employment or business to court, and return. However, apart from that, I am of the view that if a juror incurs other reasonable travelling expenses, say, for travelling by taxi between court and his place of employment or business in order to gain some time for her work which would otherwise be neglected or left undone because she has spent most of the office hours in court, those expenses should also be allowed. In Hong Kong, we are fortunate enough to be able to enjoy very good transportation services provided by various forms of transport and also for relatively reasonable charges. For instance, a ride on the tram on Hong Kong Island costs $1, a trip on the Mass Transit across the harbour from terminal to terminal costs only $8.50 (except for some busy hours when the fare is $9.10), and the taxi charges $9 for the first 2 kilometres and $0.90 for each subsequent one-fifth of a kilometre although crossing one of the cross-harbour tunnels will attract an additional charge of $20. The allowance of $90 per day would normally be sufficient to cover the travelling expenses to and from court every day.

13. Subsistence expenses, it seems to me, do not mean to cover all expenses for the subsistence of the juror. Whether a person works or simply stays at home and not gainfully employed, he has to subsist as a person, and the allowance for subsistence cannot reasonably be expected to cover all expenses incurred for his subsistence. When he goes to work, unless his employer provides him with meals, he has to spend on his own subsistence. When he stays at home, he also has to eat and drink. I consider that subsistence allowance does not cover expenses usually and normally incurred by a person in those circumstances. What it is intended to defray, I think, is the additional expenses he has to pay because he serves as a juror, for example, he has to pay for his own meal while serving on the jury which would otherwise be provided by his employer at his place of work, or he has to eat in Central or Wanchai close to the court in which he serves so that he can make himself available in court in time or so that he does not have to incur more travelling expenses to go to a cheaper area to have his meal. Or he would otherwise eat or cook at home and incur much less expenses on raw food or as part of an additional mouth around a family dining table than on cooked food available at restaurants or canteens close to the court.

14. Regarding financial loss, local circumstances at present do not admit of considerations like benefit under enactments relating to social security that pertain in England. It is also an item that is less frequently incurred than travailing and subsistence expenses. In cases where the juror is an employee earning a salary, in the normal course of events it is unlikely that such loss will be incurred. Section 33 of the Ordinance provides that no employer shall terminate, or threaten to terminate, the employment of, or in anyway discriminate against, any person employed by him by reason of the fact that such person serves as juror, and any contravention is a criminal offence. Refusal to pay salary will be considered as a form of discrimination, and the employee who serves as a juror is normally able to get his salary from the employer while so serving. Financial loss may, on the other hand, be suffered by a person who runs his own business or profession, or it may be incurred by a housewife whose jury service has rendered it necessary to, for example, pay a person or for a car to take her children to school which would otherwise be done by her. Generally, the allowance paid for financial loss is for reimbursing or compensating the juror for what he has actually lost financially, and also for the loss of earnings or benefits which he would otherwise have been able to obtain from whatever reasonable source had he not served as a juror.

15. Before leaving this subject, I would like to mention that while various rates are provided for various forms of allowance for the juror in England, the Governor in the Allowances to Jurors Order has made the juror allowance an invariable sum of $90, irrespective of the expenses incurred or loss suffered by the juror, with the additional allowance limited not to exceed another $90, which will only be paid if the court so orders. It can be seen therefore that while in England, the exact amount of most of the various allowances payable has to be arrived at by calculations, in Hong Kong the juror allowance is paid as a matter of course without the necessity of entering into any form of calculation or inquiry. Only when the additional allowance is claimed or considered that the juror and the court will need to enter into the ascertainment process. By the provision of this fixed sum payable to the juror for each day or part thereof on which he so serves, the juror is not inconvenienced or troubled by having to keep a record of and proving what he has spent on travelling and subsistence, and a lot of the court's time will be saved which would otherwise have to be spent on the ascertainment exercise. This is a considerable advantage, if I may say so, over the English legislation and it operates in the public interest.

When should the additional. allowance be paid?

16. While the English law deals with jurors' allowances under the three categories, our legislation does not propose to differentiate between types of allowance. It is therefore difficult to postulate that the additional allowance should only be ordered to pay for financial loss, excluding any expenses incurred for travelling and subsistence which exceed the juror allowance. When dealing with the financial allowance, the English legislation excludes travelling and subsistence expenses. The reason for so doing seems to me that as the travelling and, subsistence expenses are covered by the respective allowance therefor, the financial allowance is specifically provided for financial loss. Nor can the juror allowance in Hong Kong being a fixed sum be a good basis for saying that only where there is financial loss that the additional allowance can be considered. As I said before, an advantage is derived from the fixed sum, but the maintenance or preservation of the advantage does not provide a reasonable ground for saying any more that financial loss cannot be covered by this fixed juror allowance than that the additional allowance cannot be used to pay for any excess of the expenses for travelling and subsistence over the fixed sum.

17. In the circumstances, I think that insofar as the juror allowance is insufficient to cover the sum total of the three types of expense and loss, the juror will be justified in applying for payment of the additional allowance.

Lengthy cases

18. The applicants told me that in lengthy cases, it was a normal practice of these courts or some judges that the additional allowance and the whole of it was paid. I must say that there is no normal practice as such, nor should there be. Every case has to be viewed on its own facts. Length of the case, or indeed, even complexity of it, does not ipso facto entitle the juror to the additional allowance. Admittedly, the longer the case, the longer the juror will be taken away from his normal way of life, either as an employee or as a businessman or as a pure leisure enjoyer; and the more complex the case, the longer the judge will take to sum up the case for the jury's consideration and the harder the jury may have to deliberate before returning their verdict. However, these matters should not, in my opinion, reflect in the amount of allowance that a juror should get because they do not increase either his travelling and subsistence expenses or his financial loss. Normally these matters will be reflected in the trial judge exempting the jurors from jury service for a long period under s.28 of the Jury Ordinance. The rationale behind such exemption seems to be that since the jurors have served for an inordinate length of time in one case, they have already done their fair share to society to serve as jurors, and they should not be required to serve again within a long period of time. It is, however; difficult to find any rational basis for paying the additional allowance simply because the case is long and/or complex.

19. The law in England makes provision for an increase in the maximum amount payable in respect of the financial loss allowance, if the court so directs. This increase is based on the length of the juror's service. The court's discretion arises where the juror has served on a jury for more than 10 sitting days. See Vol. 40, Atkin's Court Forms, supra, p. 90. However, because the entire structure of the allowances provided for in the respective English and Hong Kong legislation is different, I do not find the English provision of any much assistance.

20. I have considered long and hard whether the length of a case should be used as a threshold for the payment of the additional allowance: The basis of the argument is that if in every case where a juror's travelling and subsistence expenses and his financial loss exceed the fixed juror allowance, he makes an application for the additional allowance, the court would be liable to a plethora of applications for the additional allowance because the inflation since 1971 must have rendered the juror allowance almost always insufficient to cover the sum total of such expenses and financial loss thereby giving rise to likely applications. For otherwise, the advantage that can be derived from the fixed juror allowance I referred to above would just disappear. If the length of the trial is used as a threshold for making an application for the additional allowance, then at least the court will be saved from some applications by jurors who have served for not over 10 days, following the English example regarding the financial allowance. However, I think that this advantage, which was created by an act of the Governor over two decades ago, should only be preserved by him or by the legislature if they should wish to do so. As the law has not expressly provided that the additional allowance is to be paid only in lengthy or complex cases (as it is provided for in rule 21(2) of the Legal Aid in Criminal Cases Rules, Cap.221 to increase counsel and solicitors' fees in cases of exceptional length or complexity), I do not think it is proper for the courts to strain the interpretation of the law so as to make it so.

21. The juror has rendered invaluable services to the community without being paid or compensated for such services. He should at least not be further taxed by having to bear the excess of the expenses which he has necessarily incurred and the financial loss which he has suffered for having to serve on the jury over the fixed juror allowance. For such excess, the additional allowance should be paid.

Inflation

22. There is a real risk that the advantage obtained from the fixed sum for the juror allowance will be lost. The reason is inflation. While formerly when the rates were fixed in 1971, the juror allowance of $90 was considered to be sufficient to cover generally the three categories of expense and loss, that fixed sum may very well be insufficient nowadays. I must, however, hasten to add that it will be wrong to say that because of the depreciation of money since 1971, the additional allowance should be paid in every case. As I said before, the alteration of the rates as prescribed in the Order, which rates having been rendered inadequate by inflation, must be left for the legislature or the Governor. Notwithstanding, there is a very strong case that such rates should be raised so as to be commensurate with the inflation rate in the past two decades, or else many citizens will be most reluctant to serve as jurors, and the advantage that I referred to above will be lost. The courts will be swamped with numerous applications by jurors after each jury trial, and a lot of time will be spent on the inquiry and calculation process.

23. I do not know or understand why the allowances for jurors under s.31 have not been increased throughout these years. A useful comparison can be made with witnesses' allowances. By the Criminal Procedure (Witnesses' Allowances) Rules, 1971, published on 5th November 1971, just nine months from the date the Allowances to Jurors Order came into effect, the Chief Justice made a rule that the court may allow a witness who attends to give evidence (other than professional or expert evidence) and thereby loses remuneration or necessarily incurs expense (other than expense on account of lodging or subsistence) to which he would not otherwise have been subject, a loss allowance not exceeding $36 for each day and $18 for four hours of attendance in respect of that loss or expense. On 4th October 1978, the Chief Justice amended the said sums to $50 and $25 respectively. On 5th December 1983, the Chief Justice again amended the said sums with effect from 1st January 1984 to $90 and $45 respectively, which prevail today. It can be reasonably inferred that the witness allowance has been revised twice to offset the effect of inflation since 1971. On the other hand, the juror allowance as well as the additional allowance have not been increased at all during the past two decades. While on this point, it is to be noted that the rates and maximum amounts in respect of the three categories of allowance are regularly reviewed in England by way of administrative determination. See Vol. 22, Halsbury's Statutes, supra p. 492, and Vol. 40, Atkin's Court Forms, supra, p. 89.

24. As the matter stands, a judge should, I think, exercise his discretion to pay the additional allowance only according to the circumstances of each particular juror. If the court is satisfied that the total of the travelling and subsistence expenses and the financial loss exceeds $90, then the additional allowance of another $90 or a part of it should be paid to compensate the juror.

Type of proof

25. Wherever an application for the additional allowance is made, there must be some bases upon which the court can rely to order the payment of a certain amount of the additional allowance. By that, I do not mean the court should need the type of evidence that is normally required to prove a case in a court of law. The juror is by statutory provision a layman (see section 5(d) of the Ordinance), and he should not be required to prove his expenses and loss strictly. For example, hearsay evidence and copies of documents can be accepted as sufficient proof, or an application may simply be supported by reasons and figures proffered and produced by the juror concerned and accepted by the court. Only when a judge is not satisfied with those reasons or figures that he may require them to be strictly proved.

The present case

26. Miss Fang and Miss Yim submitted their reasons and informed me of the figures upon which they relied, and each produced a letter from the employer in support.

27. On travelling expenses, Miss Fang told me that she had to take the tram from her home in Wanchai to attend court at $1 per ride, meaning $2 per day for a return trip. She went back to work in Kowloon Bay after court hours in order to maintain a good relationship with her employer, and because of that, she had to work very late on those occasions and she came home by taxi, incurring about $80 per trip. She returned to work in that manner about twice each week when she was serving on the jury. She therefore had to incur on the average $34 daily for her travelling.

28. On subsistence expenses, she told me that when she went to work in Kowloon Bay, she would spend $6 per day for a lunch box at the canteen there. Because she had to serve as a juror, she spent about $25 to $30 on lunch in or near the court, and about once a week while so serving, she went out with other members of the jury for a better meal, costing about $100. She also spent about $8 for tea or coffee during the court breaks. When she had to go to work after office hours, because she had to stay late, she could not return home for dinner and had to spend about $20 to $30 for it whereas she did not have to pay when she dined at home. Her average additional expenditure on food for serving as a juror was about $58 per day. Above all that, she suffered financial loss in that because of her serving as a juror for nearly three months, the salary review which was promised by her employer to start in April 1992 had to be delayed for the same period. Her salary would have been raised by $500 per month from April had she not served as a juror, totalling $1,500. Altogether, her expenses and loss come to about $32 a day over and above the fixed juror allowance.

29. Miss Yim's subsistence expenses were about the same as those incurred by Miss Fang. For her travelling, her return trip to court every day when she served as a juror cost her twice $8.50 for travelling on the Mass Transit. She lived in Ngau Tau Kok and worked in Hunghom. She had to rush back to her office in Hunghom after court hours, and therefore when she had to return to work, about twice or thrice a week, she had to incur $60 for the taxi, going through the tunnel. Her financial loss was that she had been promised a new job in April 1992 by another company which would bring her $2,800 a month more than the salary that she was earning. The proposed employer waited for her till 1st July 1992 to accept the appointment, but as she was still serving as a juror in this case, she could not take up the new job.

30. Having considered all the reasons and figures as submitted by the ladies, all of which I accept, I am of the view that the fixed juror allowance of $90 a day was insufficient to cover their respective expenses for travelling and subsistence and financial loss.

31. In respect of Miss Fang, I grant her additional allowance under s.31 (2) at the rate of $32 per day for each day or part thereof during the whole period when she served as a juror. Apart from her travelling and subsistence expenses which are barely covered by the fixed juror allowance of $90, Miss Yim had suffered a loss of $2,800 a month for 3 months, totalling $8,400. Even granting her the full rate of the additional allowance at $90 per day will not be able to compensate her fully. However, that is the utmost that I can do. I order that Miss Yim be paid the additional allowance of $90 per day for each day or part thereof on which she served as a juror in this case.