Exactly a year ago, in June 2025, a retired and very senior judge in Britain, Lord Leveson, at the behest of the British government, produced a report that recommended the abolition of the right to a jury trial except in serious cases where a defendant is likely to be sentenced to a term of imprisonment exceeding three years. His recommendation then led to the Courts and Tribunals Bill and a proposed change in the law. If the Bill is passed by Parliament and becomes law it will mark a dramatic change in the Common Law, which is of course the legal system that Hong Kong inherited from colonial times.
It raises the question: should Hong Kong follow suit and amend its Common Law?
Lord Leveson’s 400 page report said that reducing the right of defendants to a jury trial would help to reduce inordinate delays in criminal trials, which are also a problem in Hong Kong.
But, interestingly, a number of Common Law jurisdictions have opted for a compromise solution or what Lord Leveson calls a ‘jury waiver’ and the right of a defendant to elect for a trial by a judge alone instead of before a jury. Such a reform has been introduced in Canada and Australia, two important Common Law countries whose judges can be appointed to Hong Kong’s Court of Final Appeal.
An English criminal lawyer, Geoffrey Robertson KC, has also suggested that the ‘jury waiver’ was adopted in Canada and Australia at the urging of Criminal Bar Associations because “they were concerned to better ensure the human right to a fair trial”.
A jury waiver has both advantages and disadvantages. It would be helpful when excessive publicity by the media might prejudice a jury and trial by a judge alone would deliver fairer justice. On the other hand, there are some very serious crimes that a jury should be given the opportunity to give a community verdict that reflects public opinion.
Another retired English judge, Lord Sumption, who created controversy in 2024 with his very public resignation from the CFA, has supported the change in the law but also stirred up another controversy by saying he disapproves of the fact that juries do not need to give any reasons for their verdicts. “The problem about jury trials”, he says, “is that because we don’t know the jury’s reasons ... they have twelve different reasons ... they give a verdict for reasons which we don’t know. So the appeal process is, often, a travesty”. On the other hand, “judges are perfectly capable of cocking up criminal cases, but the errors of judges are correctable on appeal. They’re transparent. We know what their reasons are, and if they don’t stack up, we can change them.”
In Hong Kong there is no longer an inherent right to a jury trial because many National Security Law (NSL) cases are rightly decided by judges alone. However, the question remains whether in other serious criminal cases other than NSL ones defendants should be given the option of trial by a judge alone. Our criminal justice system would, I believe, benefit from an assessment and discussion of whether such a change is warranted.
Cheng Huan is an author and a senior counsel who practices in Hong Kong
