02a LLAW3102 2021 S2 SGTQ02 Witnesses I PDF

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LLAW3102 – Evidence I Study Guide and Tutorial Questions (20-21, S2) – Topic 02

THE UNIVERSITY OF HONG KONG DEPARTMENT OF LAW LLAW3102 – EVIDENCE I ACADEMIC YEAR 2020 - 2021 (SEMESTER 2) STUDY GUIDE TOPIC 2 – WITNESSES (I) A. Topic Learning Outcomes Students who have adequately prepared for and participated in the lecture and tutorial of this topic will be able to understand: 1. the competence and compellability issues of a witness; 2. how a compellable witness can be compelled to testify in court; 3. the special arrangements available for vulnerable witnesses; 4. the purpose and nature of examination in chief; 5. the rule against previous consistent statement and its exceptions; 6. the rules about refreshing memory of a witness; and 7. the differences between an unfavourable witness and a hostile witness. B. Tutorial The tutorial questions of this course serve as ‘checkpoints’ for students to facilitate their selfassessments of:- (i) how well they understand the fundamental concepts of individual topics; and (ii) how they can apply the theories learned to resolve hypothetical fact-pattern questions. Most (if not all) questions in the final examination will also be hypothetical fact-pattern questions. Before attending the tutorial session, please read the tutorial questions for Topic 2 and prepare brief answers to each of the tutorial questions. You will be asked to discuss your answers with your classmates and course tutor.

Created and edited by J.C.K. Yeung Department of Law of the University of Hong Kong Version: January 2021

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LLAW3102 – Evidence I Study Guide and Tutorial Questions (20-21, S2) – Topic 02

C. Essential Readings for Topic 2 Statutory Provisions      

Evidence Ordinance (Cap. 8), ss 3-12. Criminal Procedure Ordinance (Cap. 221), ss34, 36, 37, 38, 38A, 54, 57, 57A, 58, 79A-79E. Oaths and Declarations Ordinance (Cap. 11), s7. Hong Kong Bill of Rights Ordinance (Cap. 383), s8 (Art 11(2)(g) of the Hong Kong Bill of Rights)) Magistrates Ordinance (Cap. 227), ss 21, 78 and 84. Crimes Ordinance (Cap. 200), s156(8).

Cases            

R v Turner [1975] QB 834. HKSAR v Poon Ching Ki [2009] 4 HKLRD 41. R v Roberts [1942] 1 All ER 187. HKSAR v Chan Siu Yuk (unrep. HCMA 1212/2015, 28th July 2006). HKSAR v Hung Wai Tak (unrep. CACC 308/1999, 30th October 2000). Leung Chi Keung v HKSAR (2004) 7 HKCFAR 526. AG v Liu Siu Lam (unrep. CACC 527/1988, 28th June 1989). HKSAR v Lee Wing Kan (unrep. CACC 199/2006, 9th March 2007). R v Wong Ka Ching and Ors (unrep. HCMA 1124/1990), 13th September 1990). R v Wong Wai Wing and Anor [1989] 2 HKC 313. HKSAR v Wong Fuk Tak and Ors (unrep. CACC 249/1999, 11th April 2000). HKSAR v See Wah Lun [2011] 2 HKLRD 957.

Created and edited by J.C.K. Yeung Department of Law of the University of Hong Kong Version: January 2021

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LLAW3102 – Evidence I Study Guide and Tutorial Questions (20-21, S2) – Topic 02

D. Optional Further Readings for Topic 2 Textbooks    

S.N.M. Young, Hong Kong Evidence Casebook (Hong Kong: Sweet & Maxwell Asia, 2004), Chapter 3; I.H. Dennis, The Law of Evidence, (London: Sweet & Maxwell, 2017), 6th edn, Chapters 13-15; R. Glover, Murphy on Evidence (Oxford: Oxford University Press, 2017), 15th Edn, Chapters 6, 7; and M. Wilkinson, E. Cheung, G. Meggitt, A Guide to Civil Procedure in Hong Kong (Hong Kong: LexisNexis, 2017), 6th edn, [14-66] – [14-69].

Statutory Provisions  

The Basic Law of the HKSAR, art 18 and Annex III. The Regulations of the People’s Republic of China Concerning Diplomatic Privileges and Immunities, art 14.

    

Consular Relations Ordinance (Cap. 557), s3 and Sch 1 (Arts 44 and 70). International Ordinance and Diplomatic Privileges Ordinance (Cap. 190), sch 1. Rules of the High Court (Cap. 4A)/Rules of the District Court (Cap. 336H), O38 rr14 and 17. Criminal Procedure Ordinance (Cap. 221), ss 79F-79G. Evidence Ordinance (Cap. 8), s51.

Practice Directions 

Practice Direction 9.5 - Evidence by way of Live Television Link or Video Recorded Testimony

Cases     

R v Brasier (1779) 168 ER 202 Harmony Shipping Co. S.A. v Saudi Europe Line Ltd [1979] 1 WLR 1380 Lau Pak-ngam v R [1966] HKLR 246 R v Richardson [1971] 2 QB 484. HKSAR v Tang Wai Leung (unrep. CACC 405/2014, 21st March 2016).

Created and edited by J.C.K. Yeung Department of Law of the University of Hong Kong Version: January 2021

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LLAW3102 – Evidence I Study Guide and Tutorial Questions (20-21, S2) – Topic 02

2.1 – Competence and Compellability of Witnesses Introduction In topic 1, students have been told about the significance of evidence in proving the objects of proof. They have further been told that the use of testimony of witnesses is a major way for parties to adduce evidence in support of their cases. When giving instructions to his/her legal representatives, a party may have an idea as to who can be called to give evidence supporting his/her case. However, there are some further preliminary issues to be dealt with by the legal representatives. These include the issues of competence and compellability. A person is said to be competent if he/she ‘may lawfully give testimony as a witnesses.’1 If a witness is incompetent to testify, it will be unnecessary to consider the issue of compellability. Whether a competent witness is compellable depends on whether he/she has ‘the obligation…to be a witness for a particular party.’2 In determining the issues of competence and compellability of witnesses, students should bear in mind that a witness can be competent and/or compellable for one party but not for another party (to be discussed in greater detail below). Therefore, the issues are not merely about ‘whether a person is a competent and compellable witness’, but ‘whether a person is a competent and compellable for the party concerned.’ The general rule under the common law is that all witnesses are both competent and compellable for the parties.3 It is said to be related to another common law rule that ‘there is no property in a witness.’4 Any party shall be able to ‘call and compel any witness…including experts.’5 In Harmony Shipping Co. S.A. v Saudi Europe Line Ltd [1979] 1 WLR 1380, the English Court of Appeal discussed the reasons for having such a rule:-6 So we have before us a question of principle. If an expert witness has been consulted by one side and has given his opinion to that side, can he thereafter be consulted and subpoenaed by the other side to give his opinion on the facts of the case? That is the issue which this court has to decide. So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man's evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena. That was laid down by the Law Society in 1944 and published in the " Short Guide to Professional Conduct and Etiquette." It was affirmed and

1

S.N.M. Young, Hong Kong Evidence Casebook (Hong Kong: Sweet & Maxwell Asia, 2004), [3-001]. Ibid. 3 R. Glover, Murphy on Evidence (Oxford: Oxford University Press, 2017), 15th Edn, p164. 4 Ibid. 5 Ibid. The difference between a witness of fact and a witness of opinion will be dealt with in greater detail in the topic about opinion evidence. 6 Harmony Shipping Co. S.A. v Saudi Europe Line Ltd [1979] 1 WLR 1380, 1384G – 1385G. 2

Created and edited by J.C.K. Yeung Department of Law of the University of Hong Kong Version: January 2021

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LLAW3102 – Evidence I Study Guide and Tutorial Questions (20-21, S2) – Topic 02

approved in 1963 by the then Lord Chief Justice and the judges and republished in The Law Society's Gazette for February 1963. It says: ".. . the Council have always held the view that there is no property in a witness and that so long as there is no question of tampering with the evidence of witnesses it is open to a solicitor for either party to civil or criminal proceedings to interview and take a statement from any witness or prospective witness at any stage of the proceedings, whether or not that witness has been interviewed or called as a witness by the other party."

That principle is established in the case of a witness of fact: for the plain, simple reason that the primary duty of the court is to ascertain the truth by the best evidence available. Any witness who has seen the facts or who knows the facts can be compelled to assist the court and should assist the court by giving that evidence. The question in this case is whether or not that principle applies to expert witnesses. They may have been told the substance of a party's case. They may have been given a great deal of confidential information on it. They may have given advice to the party. Does the rule apply to such a case? Many of the communications between the solicitor and the expert witness will be privileged. They are protected by legal professional privilege. They cannot be communicated to the court except with the consent of the party concerned. That means that a great deal of the communications between the expert witness and the lawyer cannot be given in evidence to the court. If questions were asked about it, then it would be the duty of the judge to protect the witness (and he would) by disallowing any questions which infringed the rule about legal professional privilege or the rule protecting information given in confidence—unless, of course, it was one of those rare cases which come before the courts from time to time where in spite of privilege or confidence the court does order a witness to give further evidence. Subject to that qualification, it seems to me that an expert witness falls into the same position as a witness of fact. The court is entitled, in order to ascertain the truth, to have the actual facts which he has observed adduced before it and to have his independent opinion on those facts. It is interesting to see that it was so held in Canada in McDonald Construction Co. Ltd. v. Bestway Lath & Plastering Co. Ltd. (1972) 27 D.L.R. (3d) 253. In this particular case the court is entitled to have before it the documents in question and it is entitled to have the independent opinion of the expert witness on those documents and on those facts —excluding, as I have said, any of the other communications which passed when the expert witness was being instructed or employed by the other side. Subject to that exception, it seems to me (and I would agree with the judge upon this) that the expert witness is in the same position when he is speaking as to the facts he has observed and is giving his own independent opinion on them, no matter by which side he is instructed.

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LLAW3102 – Evidence I Study Guide and Tutorial Questions (20-21, S2) – Topic 02

Competence – The Historical Position Despite the general common law position regarding competence of witnesses, the common law had historically developed exceptions to prohibit certain types of individuals from being a competent witness. These included: (i) (ii) (iii) (iv) (v) (vi)

Persons having interests in the results of the legal proceedings concerned;7 Husbands and wives of the parties;8 Atheists;9 Persons being convicted of ‘treason, felony or the misdemeanours of perjury, forgery and conspiracy’;10 Persons of defective intellect;11 and Children (unless satisfying the test set out in R v Brasier (1779) 168 ER 202.12

These common law exceptions to competence of witnesses were believed to be in place because of those persons’ inability to take oath (i.e. making a promise to God that the witness will tell the truth).13 Competence – The Current Position In Hong Kong, many of the above restrictions regarding competence of witnesses have been removed by statutory provisions. 

Parties – see s5 of the Evidence Ordinance (Cap. 8) (“EO”), ss54 and 58 of the Criminal Procedure Ordinance (Cap. 221) (“CPO”); CAP 8 EVIDENCE ORDINANCE Section 5 Evidence of parties In all proceedings before the court, the parties and the husbands and wives of the parties thereto, and the persons in whose behalf any proceedings may be brought, or instituted, or opposed, or defended, and the husbands and wives of such persons shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva voce or by deposition, according to the practice of the court, on behalf of either or any of the parties to the proceedings.(Amended 27 of 1937 Schedule)[cf. 1851 c. 99 s. 2 U.K.; 1853 c. 83 s. 1 U.K.] CAP 221 CRIMINAL PROCEDURE ORDINANCE Section 54 Competence of person charged in criminal cases (1) Every person charged with an offence, whether charged solely or jointly with any other person, shall be a competent witness for the defence at every stage of the proceedings: (Amended 23 of 2003 s. 3) Provided as follows— (a) a person so charged shall not be called as a witness in pursuance of this section except upon his own application; (b) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution; (Amended 23 of 2003 s. 3)

7

H.M. Malek (ed), Phipson on Evidence (London: Sweet & Maxwell, 2017), 19th Edn, [9-03] – [9.04]. Ibid, [9-05]. 9 Ibid, [9-06]. 10 Ibid, [9-07]. 11 Ibid, [9-10]. 12 Young (see n 1 above), [3-002]. 13 Ibid. 8

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LLAW3102 – Evidence I Study Guide and Tutorial Questions (20-21, S2) – Topic 02

(c) - (d) (Repealed 23 of 2003 s. 3) (e) a person charged and being a witness in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged; (f) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless — (i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or (iii) he has given evidence against any other person charged in the same proceedings; (Amended 50 of 1981 s. 2) (g) a person charged and called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence. (14 of 1906 s. 2 incorporated. Amended 20 of 1948 s. 4; 23 of 2003 s. 3) (2) Notwithstanding any rule of law, the right of a person charged to make a statement without being sworn is hereby abolished. (Added 34 of 1972 s. 9)[cf. 1898 c. 36 s. 1 U.K.]

CAP 221 CRIMINAL PROCEDURE ORDINANCE Section 58 Application Sections 54 to 57A shall apply to all criminal proceedings, notwithstanding any other provision in force at the time of their enactment, and in sections 54 to 57A, court ( 法庭 ) includes the District Court and a magistrate. (14 of 1906 s. 6 incorporated. Amended 20 of 1948 s. 4; 23 of 2003 s. 5)[cf. 1898 c. 36 s. 6 U.K.]



Parties’ spouses – see s5 of EO (see above). o See exceptions set out in ss6 and 11 of EO; and s57 of CPO (to be discussed in greater detail in sections below). CAP 8 EVIDENCE ORDINANCE Section 6 Evidence of husband and wife Nothing in this Ordinance shall render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband, in any criminal proceedings.[cf. 1851 c. 99 s. 3 U.K.; 1853 c. 83 s. 2 U.K.] CAP 8 EVIDENCE ORDINANCE Section 11 Evidence of parties and their husbands and wives in proceedings for adultery In any proceedings instituted in consequence of adultery, the parties to such proceedings and the husbands and wives of such parties shall be competent to give evidence in relation thereto.(Amended 25 of 1969 s. 3)[cf. 1869 c. 68 s. 3 U.K.]

Created and edited by J.C.K. Yeung Department of Law of the University of Hong Kong Version: January 2021

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LLAW3102 – Evidence I Study Guide and Tutorial Questions (20-21, S2) – Topic 02

CAP 221 CRIMINAL PROCEDURE ORDINANCE Section 57 Competence and compellability of accused’s spouse or former spouse (1) The husband or wife of an accused shall be competent to give evidence on behalf of the accused or a co-accused and, subject to subsection (5), shall be competent to give evidence for the prosecution. (2) Subject to subsection (5), the husband or wife of an accused shall be compellable to give evidence on behalf of the accused. (3) Subject to subsection (5), the husband or wife of an accused shall be compellable — (a) to give evidence for the prosecution but only in respect of any specified offence with which the accused or a co-accused is charged; or (b) to give evidence on behalf of a co-accused but only in respect of any specified offence with which the co-accused is charged. (4) An offence is a specified offence for the purposes of subsection (3) if— (a) it involves an assault on, or an injury or threat of injury to, the husband or wife of the accused; (b) it involves causing the death of, an assault on, or an injury or threat of injury to, a child of the family who— (i) at the material time was under the age of 16 years or was a mentally incapacitated person; or (ii) at the time when the evidence is given is a mentally incapacitated person; (c) it is a sexual offence alleged to have been committed in respect of a child of the family who— (i) at the material time was under the age of 16 years or was a mentally incapacitated person; or (ii) at the time when the evidence is given is a mentally incapacitated person; or (d) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a), (b) or (c). (5) Subject to subsection (6), where an accused and the husband or wife of the accused are standing trial together, neither spouse shall at the trial be competent to give evidence for the prosecution under subsection (1), or be compellable to give evidence under subsection (2) or (3). (6) Subsection (5) shall not apply to either spouse who is no longer liable to be convicted of any offence in the trial (whether as a result of pleading guilty or for any other reason). (7) Section 7 of the Evidence Ordinance (Cap. 8) (privilege of husband and wife) and section 8(2) of that Ordinance (evidence of access) shall not apply to the husband or wife of an accused, where the husband or wife is giving evidence for the prosecution, or on behalf of the accused or a co-accused, in circumstances in which he or she is compellable to do so under subsection (2) or (3), as the case may be. (8) Section 65A of the Evidence Ordinance (Cap. 8) (privilege against incrimination of self or spous...