2. Does the defendant have the right not to give evidence at trial?

2. Does the defendant have the right not to give evidence at trial?

An accused has a right to remain silent, which includes the right not to testify in Court.

However, the right of silence is diminished by the requirement in section 65D of the Criminal Procedure Ordinance (Cap. 221). A defendant relying on the defence of alibi (i.e. the defence that he was not present at the location and at the time of the offence) must first give an alibi notice (i.e. inform the prosecution that the defendant has the intention to run such a defence) to the prosecution no less than 7 days prior to trial. Usually, a defendant will either give evidence and/or call witness(es) who was/were with him during the time of the offence to prove such an alibi. However, this is a right and not a duty. The defendant still has the right to require the prosecution to strictly prove that he was present at the offence location at the time.

A. Caution in drawing inference from silence

It is not open to a jury (or a Magistrate or Judge in the absence of a jury) to infer guilt on the part of the defendant who elect not to give evidence in Court, and/or who refused to answer some of the questions in an interview previously conducted by the law enforcement authorities (e.g. the Police, the ICAC, Customs, etc.).

B. Prosecution not to comment upon the defendant’s exercise of the right to silence

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.

The prosecution cannot tell the jury that the defence relied upon by the defendant at trial was not previously put forward to the authorities. However, if the defence relied upon at trial was inconsistent with the explanation previously given to the authorities, it is open for comments to be made on the inconsistencies.

C. Co-defendants’ comments upon the defendant’s exercise of the right to silence

There are no restrictions on a co-accused commenting on the failure of a co-defendant to testify, and the court may also make observations about that failure.