刑事檢控科各律師/高級律政 - Department of Justice

23
(3)
[English digest of
MA 931/99
above]
Pang J
(9.8.2000)
*Sin Pui-ha
#Mui
Kwok-keung
TANG
Don-yuk
Husband testifying against wife /Whether warning to husband
necessary/Whether husband compellable/Effect of witness
summons issued to husband
The Appellant was convicted after trial of assault occasioning
actual bodily harm. The victim was the husband of the Appellant. The
Appellant appealed against conviction.
Held :
On appeal, it was submitted, inter alia, that:
(i) under the common law a spouse of the accused
could not be ‘forced’ to give evidence in a criminal
proceeding against the other. The husband was
served with a witness summons to attend court to
give evidence. That meant that the husband was
‘forced’ to give evidence. It was a material
irregularity;
(ii) the magistrate failed to give a warning to the
husband that he could elect not to give evidence,
and the court could not ‘force’ him to testify.
(1) The witness summons was issued in accordance with Form 14 of
the Magistrates Ordinance. It required a witness to attend before a
magistrate on a certain date to give evidence. Once a witness had
attended court on a specified date, his duties under the witness
summons were discharged. The witness summons did not require that
a witness must give evidence before a magistrate;
(2) In R v Pitt (1982) 75 Cr App R 254, it was held to be
desirable that where a wife was called as a witness for the prosecution
of her husband - she being a competent but not a compellable witness -
the judge should explain to her, in the absence of the jury and before