On 12 September, the High Court tried to select seven jurors in vain for a case of conspiracy to make explosives (allegedly in a disused studio in Sai Kung, right before the Legislative Council debated the government's political reform package in mid-June 2015), for more than half of the jurors-to-be claimed that their command of English was poor. Consequently, only five were selected, and two more were wanted.On the following day, one more juror was selected with one still outstanding. On the third day (14 September), the situation remained unchanged. In fact, whenever a case is tried in English in a Hong Kong court, as in this case in which the judge and one of the defense counsels are expatriates, there will be a court interpreter to consecutively interpret questions of counsels and answers of witnesses.
Now, provided that when the judge and the lawyers discuss law-points, and when the prosecution and defense counsels make their final submissions, they stop every other sentence and wait for the court interpreter to interpret consecutively for everyone in the courtroom to hear, then the jurors should have no comprehension problems, even if their English standard is poor. (Court interpreting is usually very accurate and complete.) Once this is put into practice, then not only with the High Court be able to find qualified jurors easily, but the jury can be extended to the District Court so that political defendants' rights will more securely be protected. The writer of this article had worked as a full-time court interpreter for nine years before 1997, and has taught interpreting and translation at various universities in Hong Kong and Taiwan for ten years.
Before 1997, most of the court cases in Hong Kong were tried by English. At that time, even when the prosecution and defense counsels, the judge, and the witnesses and defendants of a case were all Chinese, court cases were usually tried in English, because the training of the lawyers in Hong Kong was in English, and they found it much easier to argue in English in court. After 1997, if there are no expatriates involved in a case, it is usually tried in Chinese. If either the judge or the counsels are expatriates, then the case will be tried in English as in the case concerned above.
If a case is tried in English, then there will be a court interpreter present. When a lawyer asks a witness a question in English, he or she will pause a while for the court interpreter to translate it into Cantonese for the witness. Then the witness will reply in Cantonese, and before long, the court interpret will courteously request the witness to pause for him or her to translate the answer into English for the defense and prosecution counsels and the judge. This is known as consecutive interpreting.
However, when the judge and the lawyers are engaged in legal discussions, or when the lawyers on both sides make their final submissions, they will not pause for the interpreter to translate. Instead, they will go on speaking continuously, while the interpreter is supposed to sit next to the defendant(s) and whisper the translation simultaneously to him or her.
Difficulty of finding qualified jurors because of the poor standard of may a Hongkonger is a technical problem that can readily be solve as mentioned above.
No doubt, if legal discussions and final submissions are to be interpreted consecutively, the duration of the trial may be lengthened. Nonetheless, what is most time-consuming in a court case is usually cross-examination of witnesses rather than legal discussion or final submission. Once the method mentioned above is put into practice, not only will the High Court be able to easily find suitable jurors, but the jury system itself can readily be extended to the district court and political prisoners' rights will have more protection.
In 2014 and 2015, law-maker Dennis, Kwok Wing-hang proposed in the Legislative Council that District Court cases be tried with a jury system, so that defendants charged in relation to political protests and demonstrations could be tried more justly. But the Department of Justice refused on the ground that that would require a lot more resources and jurors.
The lack of juries in the District Court has been severely criticized. Clive Grossman SC, one of Hong Kong's most senior barristers, has put down in the preface to Archbold's Hong Kong 2010, "Any person who is arrested on a serious or relatively serious charge is almost certain to be convicted, and since the convictions are in the district and high courts, imprisonment is almost always the norm...The high rate of convictions is founded on the comforting assumption that prosecution witnesses, including the police... always tell the truth!"
The jury system can prevent to a good extent the possibility of professional judges being subject to political or superior influence. The high voting threshold lowers the probability of wrong verdict. "Juries bring with them the freshness and insights of those who are new to the system and have not become case-hardened or cynical" (Paul Mendelle, 2010).