RE WAT CHI CHING WILLIAM

HCMP 612/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 612 OF 2013

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REASONS FOR DECISION

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1.  On 12 April 2013 I refused an application for exemption from jury service made by this applicant and advised that I would hand down my reasons at a later date. My reasons follow.

2.  The applicant applied to the court by way of Originating Summons for an order that he be excused from attending court as a prospective juror, in May 2013 and that his name be removed from the list of jurors on a permanent basis, pursuant to s 28(1)(b) of the Jury Ordinance, Cap 3.  The applicant who was represented at the hearing relied on his affirmation filed in support and also the written submissions his solicitor filed for the hearing of his application.  His application was based on what he contended was “inordinate convenience” which should allow him to be permanently exempted from jury service.

3.  The relevant details of the application were as follows:

The applicant was born in Hong Kong and is now aged 55 years.  He holds a Hong Kong identity card and is also a Canadian citizen, having emigrated to Canada in 1987.  He stayed there until 1992 at which time he returned to Hong Kong to work; later he set up his own businesses.

4.  The applicant was placed on the list of jurors in 2006 and at that time applied for permanent exemption. Since then he has been called twice to serve as a juror and on each occasion has been excused.

5.  His businesses at present are international trading and manufacturing of electronic and electrical products and machinery. He has two factories in China and one in Taiwan.  The need to supervise his businesses requires him to travel very frequently outside Hong Kong and in consequence his time in Hong Kong, where he resides, is very short.  The applicant annexed to his affirmation copies of his travel records from 2002 – 2012 [Exh W-5].

6.  In 2012 his periods of stay ranged from 1 day to 117 days and in 2011 from less than 1 day to a maximum of 11 days.  In 2012 he went in and out of Hong Kong 94 times and in 2011, a total of 112 times.

7.  Other submissions were made on his behalf.  I note the following, at para 2 of the written submission:

“The applicant has spent the best part of his life to build up his businesses and should be allowed reasonable opportunity in the last part of his working life to earn his living and to accumulate savings for his retirement. To serve as a juror would cause hardship, and inordinate inconvenience to the applicant in his special circumstances.”

8.  At para 7, it was submitted:

“Systems of law, temperament of the people and societies in mainland China and Taiwan are different from Hong Kong. It is unfair to the accused if a juror is not familiar with the norms and culture in Hong Kong. This is tantamount to a lack of Chinese and English which qualify a person for permanent exemption as a juror.”

9.  By section 28(1)(a) the court has a discretion on cause being shown to exempt a juror either for a particular trial or for a period of time and by section 28(1)(b) to remove the name of any person from the list of jurors.  The applicant asked the court to allow his permanent exemption.  The applicant is required to show cause and in that context the affirmation of the applicant and the written reasons and submissions made on his behalf were relevant and were considered by the court.

10.  A number of authorities were referred to the court by the applicant’s solicitor.  The authority most pertinent to the instant case is Re Lau Ko Yuen Tom [1998] 4 HKC 735.  Burrell J in giving judgment refusing a similar application, referred to a Practice Note [1973] 1 All ER 240 which operated in England at that time, and which, although it does not have direct application in Hong Kong, nevertheless is relevant still in setting out the principles which should be taken into account in deciding whether cause has been shown.

11.  Based on those principles a juror should be excused if he is personally concerned in the facts of a 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 was contrary to established practice for a juror to be excused on more general grounds such as race, religion, political beliefs or occupation.

12.  A further basis for exemption, noted by Burrell J, could arise where the applicant’s position is such that he would not carry out jury service in accordance with the juror’s oath.  (See R v Crown Court at Guildford, ex p Siderfin [1989] 3 All ER 7)

13.  That case emphasised the importance of jury service, pointing out the vital role such service plays in the administration of criminal justice.  It is acknowledged that jury service is an onerous task but without juries our system of justice would collapse.  Thus undertaking jury duty is an important obligation for every eligible citizen.  Very few eligible citizens are entitled to exemption from jury service and even if there was good reason for such exemption there is no automatic entitlement to be excused.  Those principles are of equal application to the situation in Hong Kong.

14.  The applicant relied on the Hong Kong case of Re Norcross MP 3606/09 (unreported) but although there is some factual similarity it is not on all fours with the instant case.  Mr Norcross was employed as a sales manager and was an American citizen who was living in the USA, whereas the applicant is living in Hong Kong, and is in charge of his own businesses.  The inconvenience claimed by the applicant is allied to the nature of his business duties, not his residence, as was the position in Norcross. I note in passing also that Norcross occurred in 1991, at a time when controlling a business outside Hong Kong was more difficult than it is now, and travel was less convenient.

15.  Applications such as this are fact-specific and so-called precedent cases are of little assistance, except insofar as they exemplify general principles.  It is not enough for example to compare the number of days in, or the number of trips out of, Hong Kong and say that if the figures are the same as those for an earlier case where an exemption was granted that cause has been shown. 

16.  The only matter which can be considered relevant in the instant case is the nature of the applicant’s working commitments and his travel schedule.  I accept that these matters may justify an exemption for a particular period of jury service after a summons has been issued.  However they are not by any means so unique or extraordinary as to justify a long‑term exemption or a permanent removal from the list of jurors.

17.  I note the submission that the applicant should be allowed to have the opportunities “in the last part of his working life” to accumulate savings for his retirement.  Even if it were a valid cause, which it is not, there is nothing special about his needs in this context.  Any prospective juror could claim the same need to provide for retirement. 

18.  The other submission made was so nonsensical that it is surprising it was advanced at all.  The gravamen is that the system of law, temperament of the people and societies in China or Taiwan, are different from those Hong Kong and thus it is unfair to an accused, that a juror is unfamiliar with the norms and culture of Hong Kong.  [See para 7 of the written submission (supra)]

19.  This applicant is a businessman who was born and has been living in Hong Kong for the better part of his life, who has lived also in Canada, has been travelling extensively in the Asian region and generally has been able to conduct business in the region.  I fail to see that he can claim that this background is tantamount to a lack of sufficient English and Chinese, or lack of knowledge of norms and customs of Hong Kong.

Conclusion

20.  I do not consider cause has been shown which would require me to exercise my discretion.  The travel patterns and business responsibilities the applicant describes are a common feature of commercial and business life in Hong Kong.  The applicant may have busy and unpredictable travel schedules and various duties in relation to those businesses.

21.  However those are not matters which affect this applicant exclusively and it would be grossly unfair to those who have the same type of responsibility to decide that this applicant is in some way busier, or more burdened than others who follow a similar pattern of business.

22.  The exigencies of business life in Hong Kong cannot justify long‑term or permanent exemptions from jury service, except in very rare cases which this one is not.

23.  It is always possible that if the applicant is called for jury service in future an application for exemption can be made to the Registrar by virtue of s 28(2) of the Jury Ordinance, Cap 3, or, at a court hearing the judge may grant the applicant an exemption for a particular case, or a particular period of time.

24.  For these reasons I refuse the application for permanent exemption and the application for exemption from attending on 13 May 2013.