Judge Unanimity: Can a Panel of Judges Constituted under the National Security Law Return a Majority Verdict?

Abstract

<p>The Hong Kong National Security Law (NSL) has introduced into Hong Kong’s crim-inal justice system a novel method of trial in the Court of First Instance for cases involving offences endangering national security. Article 46(1) of the NSL empow-ers the Secretary for Justice to, under specified circumstances, issue a certificate directing the case to be tried by a panel of three judges instead of a jury. However, the NSL does not make clear the threshold required for the panel of three judges to return an effective verdict — whether unanimity is called for or whether a majority verdict is available to convict the accused. This article engages this question by un-dertaking an interpretive analysis of the relevant provisions to ascertain a legally defensible answer. It argues that the common law principle of jury unanimity, originating from twelfth-century English law and preserved as part of the Hong Kong common law, supplements the NSL and provides solid support for unanimity as the correct legal position. The same conclusion can also be reached by constru-ing different provisions of the NSL as a coherent whole in tandem with other con-stitutional and statutory instruments including the Basic Law and the Hong Kong Bill of Rights.<br></p>