4. Who can be a witness in Court?

4. Who can be a witness in Court?

The common law requires a witness to go to court to testify as to his or her evidence. The witness has to be sworn or affirmed to speak the truth, and be subjected to cross-examination by other parties in the case. This would allow the jury (or a Magistrate or a Judge without a jury) to observe the demeanour of the witness and the manner in which the witness gives his or her evidence. They can then make a finding as to whether to believe what the witness has said.

Before a witness is asked to give evidence in a criminal trial, the Court must first be satisfied that the witness is both competent and compellable.

A. Competence of witnesses

A witness must be competent to give evidence. Individuals are presumed to be competent unless there is evidence suggesting otherwise. Section 3 of the Evidence Ordinance (Cap. 8) provides that a person of unsound mind who appears not able to have impression of the event or not able to explain the relevant facts is considered incompetent to be a witness. 

There are also special rules governing the competence of children, the defendants, co-defendants, and defendants’ spouses as witnesses. 

B. Compellability of witnesses

In general, all competent witnesses are compellable to testify in Court. In other words, the parties can call competent witnesses to testify without their consent. If a compellable witness refuses to testify or declines to answer a question without just cause, they can be punished for contempt of court. However, the most remarkable exception is that sovereigns, heads of states, and persons under diplomatic or consular immunity are not compellable as witnesses.

There are also special rules on whether the defendant’s husband or wife is a compellable witness. Please see b. Spouses as witness.