Hong Kong Magistrates trials are more inquisitorial than adversarial. Discuss

Essay by moman786University, Bachelor'sA+, February 2004

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Hong Kong Magistrates Trials are more inquisitorial than adversarial

When an offence has been committed there is a moral and social obligation that the perpetrator be tried and convicted. Every criminal justice system has devised a mechanism to bring about this desired effect. The hypothesis here demands an investigation of the two modes of trial that are implemented in the 'democratic' world and whether the system employed in the Hong Kong Magistrates leans to one system over the other.

Adversarial system:

Ask any layperson and his/her perception of a criminal trial will be akin to an adversarial model. As the name suggests the trial is conducted between two parties (the defence representing the accused, the prosecution representing the victim ) going against one another, with a neutral judge or jury to be the final arbiter in determining which side of the facts represents the truth. The main feature of this mode of trial is that the truth is established by means of a 'contest' between the two parties.

Inquisitorial system:

In contrast to the above, in an inquisitorial trial the prosecution is represented by the state and it is his/her obligation to gather the relevant facts of the case. The judge has the pivotal role of establishing the truth. Hence, he will be actively involved in the trial process and not surprisingly the defendant will largely be questioned by the judge. The advocates only have a minor role to play, asking supplementary questions or objecting to them.

By looking at the definitions once can see that there is no reason why rule of law principles such as due process, transparency etc. cannot be upheld by either system. Hence, on a substantive level both systems are the same and the only difference is procedural. A state committed to uphold the rule...