HAROLD ALBERT NORCROSS v. REGISTRAR OF THE SUPERME COURT

1990, No. MP 3606

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HEADNOTE

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A PERSON MAY BE "RESIDENT" IN HONG KONG WITHIN THE MEANING OF S.4 OF THE JURY ORDINANCE, CAP.3 EVEN THOUGH HE IS NOT EXCLUSIVELY RESIDENT HERE. THE REGISTRAR WAS RIGHT TO REFUSE TO REMOVE THE APPLICANT'S NAME FROM THE LIST OF COMMON JURORS UNDER S.12.

HOWEVER - AS THE REGISTRAR RIGHTLY CONCEDED - IT WAS APPROPRIATE IN THE CIRCUMSTANCES FOR THE COURT TO GRANT HIM GENERAL EXEMPTION FROM JURY SERVICE UNDER S.28. IF THE NATURE OF A MAN'S RESIDENCE IN HONG KONG IS SUCH THAT LEAVING HIM LIABLE TO BE CALLED UP FOR JURY SERVICE WOULD BE EXPOSING HIM TO AN INORDINATE DEGREE OF INCONVIENCE IT WOULD BE RIGHT FOR THE COURT TO GRANT HIM SUCH EXEMPTION. ON THE FACTS THAT WAS THE POSITION HERE.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. The applicant, Harold Albert Norcross, is a citizen of the United States of America. He lives in California. By, occupation he is the sales manager of a Hong Kong company, the principal activity of which appears to be the sale in a number of parts of the world of goods manufactured in the Philippines. The production and marketing of such goods are among his principal responsibilities. That requires him to do a lot of travelling. His travels take him to Hong Kong, the Philippines, Japan and England. Over the years he has spent quite a lot of time in Hong Kong. Taking the period from 1985 to 1989, one finds a high of 144 days in 1986 and a low of 32 days in 1989. Unfortunately counsel for the applicant is unable to give me the figures for last year or for so much of this year as has elapsed. But I do have the general picture nevertheless. The duration of each stay varies. Over the period 1985 to 1989, the single longest period of stay appears to have been one of 28 days and the shortest of one day.

2. It would appear that Mr Norcross got on to the list of common jurors as settled by the Registrar in these circumstances. Acting under the obligation laid down in s.3 of the Registration of Persons Ordinance, Cap. 177, he applied to be registered in the manner prescribed in regulations made under s.7 of that Ordinance. He would not have had to do so if he was an exempt person. But he was not an exempt person. One sees from para. (d)(iii) of reg. 25 of the Registration of Persons Regulations that certain persons are exempt from the duty to register if the period for which they receive permission to remain in Hong Kong does not exceed 180 days. He received permission to remain here for a period well in excess of 180 days.

3. The duty to apply for a Hong Kong identity card is contained in reg. 3 of those Regulations. Being a person who had to be registered, Mr Norcross had to apply for an identity card. He did so; and he was issued with one. It would appear that it was on the strength of his being registered and holding an identity card that he was put on the list of common jurors.

4. I turn now to the Jury Ordinance, Cap. 3. Section 4 of that Ordinance reads as follows:-

"Every person between the ages of 21 and 65 years, being of sound mind and not afflicted with deafness, blindness, or other such infirmity, who is a good and sufficient person resident within Hong Kong, and who has a knowledge of the English language sufficient to enable him to understand the evidence of witnesses, the address of counsel and the Judge's summing up, shall be qualified and liable to serve as a juror, subject to the exceptions hereinafter provided. Notwithstanding anything herein contained it shall be lawful for the court of its own motion or on the application of the Registrar or of any party interested to discharge any person summoned to serve as a juror who is unable to satisfy the court or Registrar that his knowledge of the English language is sufficient for the purposes aforesaid."

5. Next I turn to s.12. It provides in ss. (1)(a) that the Registrar may from time to time :-

"amend the list of special jurors or the list of common jurors by removing the name of any person who he has reason to believe is not qualified or liable to serve as a juror, or is exempt from service".

6. Mr Norcross, on legal advice, invited the Registrar to remove his name from the list of common jurors on the basis that he is not liable to serve as a juror for the reason that he is not resident in Hong Kong. The Registrar was not prepared to adopt that course; but he very helpfully informed Mr Norcross's legal advisers of his right to apply to the Court. What then happened was that Mr Norcross, through solicitors and counsel, applied to the Court - by way of what was described as an "Ex Parte Originating Summons" - for the removal of his name from the list of common jurors.

7. The matter then came before me on November 13, 1990. What I did then was to give Mr Norcross leave to amend the Originating Summons to seek permanent exemption in the alternative to the order for removal sought. I also directed that the papers be served on the Registrar under cover of a letter explaining that the amendment and the service was effected under my leave and direction. I gave liberty to restore the matter before me in due course. It was my intention - and I thought that was clear - that the Registrar was to be informed of the position so that he could make any representations he wished or assist the Court in any way that he saw fit. It was not my intention that the Registrar be made a party - as he has in fact been made.

8. Counsel from the Attorney General's Chambers appears on behalf of the Registrar. He takes the point - a good one in my view - that the Registrar should not have been made a party. But he welcomes the opportunity on behalf of the Registrar to assist the Court. His submission on behalf of the Registrar is that Mr Norcross is resident in Hong Kong. I have now heard argument on both sides of the question. As so often happens when the question of residence comes up, the decision of the House of Lords in Commissioners of Inland Revenue v. Lysaght [1928] AC 234 has been cited. So has the decision of the House of Lords in Cooper v. Cadwalader (1904) 5 Tax Cases 101. Certainly, if one were to approach the matter in the way it was approached in those revenue cases, a conclusion that in all the circumstances Mr Norcross is resident in Hong Kong - even though his home is in California - would appear to be the correct one. "Resident" does not mean "exclusively resident".

9. The argument on behalf of Mr Norcross, however, runs thus. Being resident for revenue purposes is quite different from being resident for jury duty purposes. All that the person held to be resident for revenue purposes would have to do is to pay tax; and that involves no more than writing a cheque. Serving on a jury is another matter which can involve much more time. The argument has its attractions. But I am not persuaded by it for this reason.  The duty to serve on a jury does not end with the question of residence. By virtue of the power given to the Court under s.28(1)(b) of the Jury Ordinance, the Court may - on application and on cause being shown - remove the name of any person from the list of common jurors or the list of special jurors or both. So the fact that somebody is on the list or lists because he is resident here does not mean that he may not obtain general exemption from jury service. Here counsel on behalf of the Registrar does not oppose general exemption even though Mr Norcross is resident here. And it seems to me that would be right to grant such general exemption to Mr Norcross by removing his name from the list of common jurors. Although he is resident here, his residence here is of such a nature that it would be inordinately inconvenient to him to be liable to serve on a jury here. It is right that one should have regard to, among other things, his convenience. Of course that is not the only consideration. There is also the public interest to be considered. But one must remember that it is not to the advantage of the administration of justice generally to have on juries persons to whom jury service is unduly onerous.

10. In order that things may be regulated in an orderly fashion, it is right that a person such as Mr Norcross should be on the list. But it is equally right that when the facts have been explored as they have been here he should be removed from it by order of the Court.

11. Jury service is a public duty of very considerable importance. No doubt when Mr Norcross is in Hong Kong he appreciates the degree of law and order that we have here. And if - at some tolerable inconvenience to himself - he was called upon to participate in the maintenance of that law and order, he ought not to complain. But the nature of his residence here is such that leaving him liable to be called up for jury service would be exposing him to an inordinate degree of inconvenience. That is "cause" within the meaning of s.28. Accordingly, I grant him the general exemption which I am empowered by that section to grant, and order the removal of his name from the list of common jurors. I am grateful to the Registrar for instructing counsel to assist the Court in this matter.

[submissions on Costs]

12. It seems to me that as far as costs are concerned, the best thing to do is to make no order. It is true that the Registrar was made a party when I made no direction to that effect, and he should not have been joined. But it seems to me that even if the Registrar had not been made a party, he would nevertheless have instructed counsel to assist the Court, and the costs incurred would have been the same.