Trial by jury

The trial in the Court of First Instance of the High Court is conducted by the Judge sitting together with the jury, and so there are some differences in the process. If the accused does not admit guilt, a jury will be empanelled. The members of the jury are ordinary citizens in Hong Kong selected by lottery from the jury pool. Both the prosecution and the defence may object to any member of the jury pool becoming empanelled as a juror. The defence can object to no more than five potential jurors without giving reasons and can object to any additional ones if valid reasons are given. Normally seven jurors are selected, although for long or complex trials a jury of nine members can be formed.

The trial then proceeds in similar manner as in the Magistrates' Court or District Court. The jury is responsible for deciding whether or not the accused person is guilty, while the Judge determines the law and procedures. Hence, the Judge of the Court of First Instance will regulate the conduct of the trial procedures and the jury will general sit there listening attentively to the evidence given by the witnesses.

After closing speeches have been made to the jury by the prosecution and the defence, the Judge will sum up the case to the jury (summarizing the evidence and the arguments made by both sides). The Judge will usually explain to the jury what the prosecution must establish before the accused can be convicted. But in general the Judge must leave it for the jury to decide who is telling the truth and whether the accused is guilty of the offence. In certain exceptional cases, the Judge may direct the jury to acquit the accused if he is satisfied that it is not safe to convict the accused based on the available evidence.

The jury will then retire to consider its verdict (i.e. to decide whether or not the accused is guilty of the offence). Based on the verdict of the jury, the Judge will formally convict or acquit the accused.

Juries must reach a majority verdict as to whether the accused is or is not guilty of the offence. In a jury of seven members, the Court will accept a unanimous verdict, a verdict of 6 – 1 or 5 – 2. If the jury cannot reach a majority verdict, the Judge may ask them to retire again and give them more time to discuss, but the Judge must not put pressure on them to reach a majority verdict. If at the end the jury still cannot reach a majority verdict, the Judge will have to dismiss the jury and decide whether or not to order a re-trial before another panel of jury.

If the accused is convicted, the case will proceed to mitigation and sentencing. It is the Judge instead of the jury who is responsible for sentencing the convicted offender.