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IX. Victims of domestic violence might berequiredto give evidence

Once a report has been made to the police and a prosecution has commenced, witnesses, including victims of offences, can be brought to court and required to testify under provisions in the Magistrates Ordinance ( Cap. 227 ) and the Criminal Procedure Ordinance ( Cap. 221 ).

It is not fatal to the success of a prosecution if the victim does not appear to testify at the trial of the alleged abuser. Provided there is sufficient other evidence available to enable the prosecution to prove guilt beyond reasonable doubt there can still be a conviction.

However the problem with domestic violence is that it generally occurs in private, which restricts the opportunity for witnesses. Neighbours who overheard an argument may understandably be reluctant to become involved. It is unlikely that there will be any CCTV evidence available where the incident occurs inside private premises. Where CCTV recordings are available and are of sufficiently good quality to show the incident leading to the prosecution, the recordings are admissible in evidence. CCTV recordings are direct evidence and not hearsay, see: HKSAR v Chan Wai Kei .

Police officers attending a domestic abuse incident may have been equipped with audio visual cameras as a part of their uniforms. Depending on the quality of the recordings it may be possible to proceed with a prosecution even if the victim is uncooperative. The abuser may have made verbal, written or audio/video admissions to the police which may be sufficient for a conviction.

There can be a conviction solely upon those admissions provided the prosecution proves with certainty the admissions or confessions were made by the abuser of his/her own free will, and not coerced or forced.

The victim of domestic violence may have called the police for immediate protection without thinking of the possible long term consequences, or the police may have been called by a neighbour who saw or heard an argument between the parties. In those situations, the victim may be reluctant to become a prosecution witness. If this is the situation, ideally the victim should tell the police about this at the scene or at least as soon as possible. Though whether or not to charge the abuser or to continue an investigation in the particular case is a matter for the police to decide, realistically, if the victim is uncooperative, this is something for the police to consider as it may affect the sufficiency of evidence and the likelihood or otherwise of a conviction. If there is no other worthwhile evidence available, the authority may decide not to prosecute or not to continue with the prosecution.

Once the Department of Justice has decided to lay charges against the abuser, there are procedures that can be used to compel or force the victim or other witnesses to attend the trial of the abuser. The witnesses, including the victim, may be issued with a witness summons that compels them to attend the court. Failing to obey the summons, or refusing to answer questions or telling lies while in the witness box in court after being affirmed or being sworn in as a witness, are all criminal offences which can result in severe penalties, including imprisonment.

It is not considered a just cause for a victim or other witness not to answer questions or to tell lies in the witness box because the victim does not want the abuser to be convicted of the criminal offence with which the court is concerned.

However, there is a just cause for not answering a question in court where the answer would tend to imply or show that the witness has committed a criminal offence in Hong Kong for which they might be prosecuted based on the evidence they give from the witness box.

Where a victim of domestic violence becomes un-cooperative with the police a bind over may be the practical way to proceed. In those situations, the prosecution could agree to offer no evidence on the charge or charges brought against the abuser if the abuser agrees to be bound over and not to seek an order for costs against the prosecution, in which case the abuser will be found not guilty. The abuser could agree, for example, to be bound over to keep the peace and be of good behaviour for 12 months in the sum of $3,000.  This means that if the abuser does not keep the peace and is not of good behaviour during the next 12 months, he will have to pay the $3000. The bind over could give the victim some protection in that the potential loss of the $3,000 recognisance if the bind over is breached may make the abuser think again before resorting to further violence during the period of the bind over.

A. The spouse as a prosecution witness

Section 57 of the Criminal Procedure Ordinance ( Cap. 221 ) enables a spouse to be a   prosecution witness where:

  1. it involves an assault on, or an injury or threat of injury to, the husband or wife of the accused;

  2. it involves causing the death of, an assault on, or an injury or threat of injury to, a child of the family who-
    1. at the material time was under the age of 16 years or was a mentally incapacitated person; or
    2. at the time when the evidence is given is a mentally incapacitated person;
  3. it is a sexual offence alleged to have been committed in respect of a child of the family who-
    1. at the material time was under the age of 16 years or was a mentally incapacitated person; or
    2. at the time when the evidence is given is a mentally incapacitated person; or
  4. 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).

This covers cases of domestic violence where the spouse or former spouse is the victim. In those situations the spouse or former spouse can be served with a witness summons requiring their attendance at the trial of the alleged abuser. Cohabitees who are the victims of domestic violence can similarly be witnesses for the prosecution. They can be compelled to attend court by issuing a witness summons to them.

Where the proceedings are in the District Court or the Court of First Instance a witness summons may be obtained under section 34 of the Criminal Procedure Ordinance ( Cap. 221 ). Disobeying a witness summons, refusing to be sworn in or refusing to give evidence without just cause is punishable as contempt of court.

B. Evidence given by children (Persons under 14 years of age)

A child of any age can be a witness for the prosecution or for the defence. Whether they should be called as a prosecution witness is a matter for the judgment of the prosecution in each case. The younger the child the less likely they will be to give cogent evidence.

It is generally not desirable for a child to be a witness against the parent or the cohabitee of the parent as that can put the child in a very difficult situation of conflicting loyalties. There is also the consideration that particularly where the abuser is the cohabitee of the child’s parent, loyalty to the parent can result in evidence being exaggerated.

However where the prosecution decides that the child's evidence is necessary and the proceedings are in magistrates court, the child can be brought to court under a witness summons in the same way as an adult witness can be brought to court under a witness summons under section 21 of the Magistrates Ordinance ( Cap. 227 ). Section 4 of the Evidence Ordinance ( Cap. 8 ) requires that a child’s evidence in criminal proceedings shall be given unswornwhether the proceedings are in Magistrates Court, the District Court or the Court of First Instance.

Where the proceedings are in District Court or the Court of First Instance a witness summons may be obtained under section 34 of the Criminal Procedure Ordinance ( Cap. 221 ).

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