XCHRX In Re Lau Ko Yuen, Tom

HCMP 5664/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5664 OF 1998

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J U D G M E N T

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1. This is an application by originating summons by Mr Lau Ko Yuen, Tom for exemption from jury service for a period of eight years or for such shorter period as the court thinks fit. The application is made under s.28(1) of the Jury Ordinance, Cap.3.

2. Section 28(1) states :

"(1) On application and on cause being shown, the court may -

(a) exempt any person from serving as a juror on any trial or for any period;

(b) remove the name of any person from the list of jurors."

3. Mr Mok, on the applicant's behalf, has confirmed that the application is made under s.28(1)(a) only and no request is made that Mr Lau's name be removed from the list of jurors.

4. Under s.28(1)(a), a discretion is conferred on the court to exempt a juror either for a particular trial or, and this is a second and separate discretion, for "any period". It is the latter discretion which the applicant asks the court to exercise in his favour.

The grounds advanced by the applicant

5. Before the court can exercise its discretion, cause must be shown. By an affirmation dated 30th October 1998, and by further submissions made by his counsel, Mr Johnny Mok, he invites the court to take into consideration a number of factors, the more significant of which are :

(a) His occupation

6. Mr Lau is the Chief Executive Officer of Paul Y. - ITC construction group. It comprises three listed companies in Hong Kong and one in Australia. The four companies employ 7,000 people. He occupies a highly responsible position which involves monitoring the proper discharge of the companies' plans and projects. His high position further places on him certain regulatory and statutory duties which cannot be delegated. He is responsible for compliance with the Listing Rules and the Companies Ordinance and disclosures to the Stock Exchange of price sensitive information relating to the listed companies.

7. More generally, he has to make decisions personally, he has to attend meetings personally and has to keep an urgent eye on the present economic situation to minimise any adverse effect it may have on his group of companies.

(b) Travel

8. Mr Lau has a busy and unpredictable travel schedule. In 1997, he flew out of Hong Kong on 16 occasions and was away for 46 working days. Up to the date of the application, he has been out of Hong Kong on 38 working days in 1998. Sometimes he has to leave for a business trip on short notice.

(c) Difficulties in being a juror

9. So great and numerous are his tasks and responsibilities as a Chief Executive Officer that he would find it difficult to concentrate on the legal proceedings if he was sitting as a juror. It would be impossible for him to stop thinking about his company business.

(d) Other contributions to Hong Kong Society

10. His companies have been responsible for major projects which have benefited Hong Kong. The projects create constant new job opportunities. The building industry in particular makes a significant contribution to Hong Kong's gross domestic product and enhances Hong Kong's international image.

(e) Employee's jury service

11. He will ensure that all his employees who are on the jury list will be encouraged and supported to do their jury service.

Law

12. Before commenting on the merits of these grounds, I will briefly deal with the law on the matter.

13. The applicant must "show cause". The question is what test should be applied in determining whether cause has been shown or not. Two Hong Kong cases were cited to me in support of the argument that one possible test is whether the applicant is exposed to an inordinate degree of inconvenience. The two cases were Re Harold Albert Norcross HCMP 3606 of 1990 (unreported) and Re Walter Cramb Dewar HCMP 928 of 1987 (unreported).

14. In the former case the applicant was a citizen of the United States of America who, between 1985 and 1989, spent a varying amount of time in Hong Kong. The highest proportion in any one year was 144 days in 1986 and the lowest was 32 days in 1989. It was acknowledged that he was resident in Hong Kong for tax purposes although the longest continuous stretch of residence here between 1985 and 1989 was only 28 days. The court commented that because of the nature of his residence, it would be inordinately inconvenient for him to serve as a juror in Hong Kong. Mr Norcross' circumstances were plainly different from the applicant's. Firstly, the potential inconvenience which jury service might cause the applicant does not arise out of the nature of his residence and, secondly, Mr Norcross, it seems, was only actually in Hong Kong for about a quarter of the year, on average whereas Mr Lau is here for over 300 days a year and it is his home.

15. Mr Dewar in 1987 was granted an exemption for 12 months. He persuaded the court that his travel schedule over the next 12 months was extensive. No further details appear in the short judgment and so any further comparisons are unhelpful.

16. It was further submitted that another test of cause being shown was whether the applicant's position was such that it is likely to prevent him from performing his duty as a juror in a proper way. The case of R. v. Crown Court at Guildford, ex parte Siderfin [1989] 3 All ER 7 was cited in support. That applicant applied for exemption having received a jury summons because of her religious beliefs. She was a Plymouth Brethren. It was held that membership of a religious sect or adherence to a particular religious belief did not by itself amount to a good reason for being excused jury service. She in fact succeeded by way of Judicial Review in getting a rehearing on the grounds that the Crown Court Judge who had refused her application had not granted her an adjournment to seek legal representation. In any event, the application was in relation to the particular case which was about to be heard at Guildford Crown Court. In the Judicial Review hearing, Watkins L.J. referred to the 1973 Practice Direction which operated in England at the time. Although it has no direct application in Hong Kong, it nonetheless provides a sound basis for determining whether cause has been shown. It states :

".... A juror should be excused if he is personally concerned in the facts of the particular case, or closely connected with a party to the proceedings or with a prospective witness. He may also be excused at the discretion of the judge on grounds of personal hardship or conscientious objection to jury service. It is contrary to established practice for a juror to be excused on more general grounds such as race, religion or political beliefs or occupation."

17. In the same case the importance of performing jury service was emphasized in the following way :

" Members of the public summoned for jury service perform a vital role in the administration of justice in the criminal courts. .... Serving on a jury is an onerous task. Many forms of public service are. But without juries the system of justice would collapse. Performance of jury service is an important obligation of every citizen.

Very few adults are entitled to exemption from it. ....

.... Even if there is good reason, there is no automatic entitlement to be excused ...."

18. Even though the Siderfin case was a judicial review of a Crown Court Judge's decision to refuse a juror exemption on a particular case, the judgment of Watkins L.J. refers to one situation which would amount to a good reason for not sitting as a juror. It would be a ground for exempting a person from jury service if that person stated, for whatever reasons, that he or she would not carry out their jury service in accordance with the juror's oath. Mrs Siderfin had stated that she would only return a verdict in accordance with her own conscience and would disregard the views of her fellow jurors.

19. I must now apply such tests as do emerge from these cases to the grounds advanced by Mr Lau.

Conclusion

20. I have no doubt that Mr Lau is a very responsible citizen of Hong Kong and an important, successful and hardworking member of the business community. However his status and circumstances are by no means unique nor are they extraordinary in Hong Kong.

21. He has not shown cause. I do not therefore have to decide whether to exercise my discretion or not.

22. I will deal briefly with each of the grounds as set out above as (a) - (e). (I should state that the five grounds are the court's summary of all the matters contained in his affirmation and advanced on his behalf.)

Ground (c)

23. In support of his argument that he would not be able to discharge his duties as a juror properly, he contends that the pressure of his work would prevent him from concentrating on the case in hand and he would not be able to follow the complexities of the proceedings. This argument has no merit and advancing it does him no credit.

Grounds (d) and (e)

24. It is unnecessary to repeat these arguments as they are irrelevant.

Grounds (a) and (b)

25. These grounds contain the only matters of any substance. However, as already indicated, whereas they may well warrant an exemption from a particular period of jury service having been so summoned, they are not the sort of matters which entitle a citizen of Hong Kong long term exemption. The travel schedule is of a very familiar type amongst busy Hong Kong businessmen. The responsibilities attached to his position are indeed onerous but to grant long term exemption for this reason would amount, in Hong Kong, to there being one law for the very busy and another law for the very very busy.

26. The application is refused.

Addendum

27. I should emphasize that my refusal for long term exemption does not mean that Mr Lau may not have very good grounds for exemption by the Registrar under s.28(2), Cap.3 at any particular time should he be actually summoned for jury service. But that is a different matter.

28. Generally speaking, given the nature of Hong Kong's commercial and business life, applications for exemption on a summons by summons basis (by the Registrar) or a case by case basis (by the court) should be dealt with sympathetically and sensitively.