After discussing the advantages of entrusting some judicial duties to the justices of the peace in our previous article on a proposed reform of Hong Kong’s justice of the peace system after the British model, we hope this article can act as a strong closer to remind our readers that lay magistrates have played an indispensable role in reducing the heavy workload of professional magistrates in England and Wales. The administrative costs can also be reduced because JPs are volunteers. Besides, JPs represent different shades of opinion and may be perceived as more objective in dispensing justice acceptable to the public.
The proposed reform has to concern itself as much with the urgent need to reduce the workload of the magistrates as with the unswerving commitment of the judiciary to the effective administration of justice in Hong Kong. Therefore, we will also discuss the support and appeal/review mechanisms which can guard against any miscarriage of justice in the reformed magistrates’ courts.
Topping the list of the reform agenda is the delineation of the jurisdiction of the reformed magistrates’ courts staffed mainly by lay magistrates. A study of the jurisdiction of the magistrates’ courts in England and Wales can give us a lead. These magistrates deal mainly with minor criminal offenses (fines or imprisonment of up to six months for a single offense or 12 months for consecutive sentences, or both) and they handle over 95 percent of the criminal cases in England and Wales. They have a civil jurisdiction, such as a family jurisdiction or appeals against government departments. They also act in licensing matters only as an appeal court from the decisions of the local authority. In addition, magistrates are responsible for handling committal proceedings to the Crown Court. Professional magistrates, who are known as district judges in England and Wales, also hear cases alone in the magistrates’ courts.
Aware of the fact that the jurisdictional powers of the magistrates’ courts are set out in the Magistrates Ordinance (MO), we need to amend the relevant provisions of the MO to get the reforms off the ground. Under Sections 92 and 92A of the MO, a permanent magistrate may impose up to two years’ imprisonment and a HK$100,000 ($12,900) fine for a single offense. The magistrate may impose up to three years’ imprisonment for more than one offense where the sentences are to run consecutively, in whole or in part. Under Section 91 of the MO, a special magistrate is limited to sentencing of six months’ imprisonment for one offense and a fine of HK$50,000. Under Section 57 of the MO, the magistrate may impose up to 12 months’ imprisonment when sentencing an offender for more than one offense. At a glance, both special magistrates and lay magistrates in England and Wales share similar jurisdictional powers.
Note should be taken of the roles played by professional magistrates in England and Wales in dealing with legally complex and more serious cases. Without doubt, the interests of justice require us to retain professional magistrates in the reformed magistrates’ courts. While professional magistrates are indispensable to the administration of justice in magistrates’ courts, we need to study in considerable detail and engage in consultation to see whether special magistrates shall be retained to support the lay magistrates. The reason for caution is that the roles of JPs and special magistrates may overlap in the reformed magistrates’ courts in Hong Kong.
The Justices of the Peace Ordinance should be amended to provide JPs with statutory powers to handle the above offenses referred to them either by the po-lice or the Department of Justice
A proposed list of offenses which fall into the jurisdiction of the reformed magistrates’ courts includes: misdemeanor cases; insulting officials on duty and in execution of duty; tickets issued for fixed penalty fines by the authorities; loitering; causing public nuisance within one’s own residential area; parental issue, e.g., ill-treatment of children; taking preventive measures to adjudicate matrimonial disputes in order to stop them from escalating into domestic violence; pet fouling and pet abuse; and bullying in schools.
The Justices of the Peace Ordinance should be amended to provide JPs with statutory powers to handle the above offenses referred to them either by the po-lice or the Department of Justice.
Some may view with misgivings the prospect of an unfair trial by an incompetent JP in the reformed magistrates’ courts. Worries will evaporate if we take a leaf from the book of the support mechanism provided by British magistrates’ courts. First of all, basic legal training is provided for lay magistrates. Since magistrates’ courts in England and Wales are usually made up of three lay persons (one chairman and two wingers) and the lay magistrates are expected to serve for a five-year term, the training expenses are quite high. We may drastically reduce the training expenses if the chairman of the panel possesses basic legal training in criminal law.
Secondly, a bench of lay magistrates is legally advised by a salaried court clerk who is legally qualified and guides the JPs on matters of law, sentencing and procedures. The advice is necessity-based so as to ensure that lay magistrates are always properly advised. It is to the credit of this system that clerks can, as in R v Uxbridge Justices, ex parte Smith (1985) Crim LR 670, act on their own initiative to offer advice to lay magistrates and may leave the court to give it to the lay magistrates after they have retired to consider their decisions. Nevertheless, the lay magistrates are independent of the clerks. At no time and under no circumstances should clerks be allowed to instruct the lay magistrates what decisions to make on any point. Also, clerks should not give any judgment on matters of fact.
The unknown risks of an unfair trial by lay magistrates should be weighed against the proven benefits provided by the existing appeal/review mechanism in magistrates’ courts. Under Section 104 of the MO, a magistrate may review his own decision upon application by either the prosecution or the defendant, or upon the magistrate’s own initiative. Under Sections 105 and 113 of the MO, decisions of magistrates’ courts can also be appealed to the Court of First Instance. The appeal will be heard by a professional judge.
Finally, the reform proposal may spark a surge of concerns about the problems of spatial constraints brought about by an increasing number of lay magistrates. It is interesting to note that the MO does not create a court as such, but simply provides for the appointment of magistrates. Thus, the power of magistrates need not be exercised in a court. Apart from conducting proceedings in magistrates’ courts, lay magistrates may handle small matters, such as tickets issued for fixed penalty fines, at district offices. Perhaps the probono lawyers’ program may play a role in assisting the defendants in these small offenses. What matters above all else is the need to convince our JPs that they can play an indispensable role in administering justice and reducing the workload of professional magistrates. With these new judicial duties in mind, JPs should be reminded that high standards of personal conduct are expected of them.
Junius Ho is a Legislative Council member and a solicitor.
Kacee Ting Wong is a barrister and a part-time researcher at Shenzhen University Hong Kong and Macao Basic Law Research Center.
The views do not necessarily reflect those of China Daily.