3. What if the defendant chooses to testify at trial?

3. What if the defendant chooses to testify at trial?

Section 54(1) of the Criminal Procedure Ordinance (Cap. 221) provides that a defendant in criminal proceedings is competent only as a witness for the defence. In fact, it is the defendants’ fundamental human rights to be able to testify for themselves to defend the charges against them: Article 14(3)(e) of the International Covenant on Civil and Political Rights, Article 11(2)(e) of the Hong Kong Bill of Rights.

Can the defendant decline to answer when giving evidence?

Section 54 of the Criminal Procedure Ordinance (Cap. 221) expressly provides that a defendant can choose whether to give evidence in his trial; any failure to give evidence shall not be made the subject of any comment by the prosecution. However, if the defendant does choose to give evidence, he or she can be asked any question in cross-examination even if the question would tend to incriminate him as to the offence charged. In other words, he or she cannot decline to answer those questions.

Are there questions that the defendant is entitled not to answer?

However, the defendant can decline to answer questions that tend to incriminate him as to any offence other than the offence charged. The prosecution is not entitled to ask questions relating to any previous conviction of the defendant. The most remarkable exception to this general rule is the situation where the defendant or his advocate had asked questions of the prosecution witnesses 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 prosecution witnesses.