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6. Procedure for giving evidence

Giving evidence in court refers to an individual, as a witness, orally presenting facts they have seen, heard, or know in court. This helps the judge or jury understand the facts of the case and make a fair judgment. 

 

Role and responsibilities of a witness  

Witnesses play a crucial role in court and must fulfill the following responsibilities:  

  1. To give evidence honestly: witnesses must truthfully state what they have seen, heard, or know. According to section 31 of the Crimes Ordinance (Cap. 200), perjury is a serious offence punishable by up to 7 years’ imprisonment and a fine. 
  2. Answer questions: witnesses must answer the questions from the prosecutor, defence counsel, and judge honestly and clearly, unless answering would incriminate themselves. 
  3. Follow court rules: witnesses must comply with court instructions, such as not discussing the case with other witnesses, to maintain the independence of their testimony. 

 

Preparing for court  
  1. Review the facts: The witness should carefully recall the details of the incident as known, including the time, place, people, dialogue, or any relevant circumstances. The witness should ensure their memory is accurate and avoid speculation or exaggeration. 
  2. Read witness statements: If the witness has provided a written statement to the police or a lawyer, they should carefully review the relevant documents to ensure familiarity with the information provided. 

 

Procedure for giving evidence in court  

1. Receiving a court summons 

The court may issue a court summons (called a “subpoena”) requiring the witness to appear in court. The subpoena will state the date, time, and place of the trial. A leaflet explaining general court procedures will also be provided. According to section 36 of the Criminal Procedures Ordinance (Cap. 211), the subpoena is legally binding and cannot be refused without good cause, or the witness may be charged with contempt of court. 

 

2. Arriving at court 

Bring the summons and proof of identity to court. Upon arrival, report to the prosecutor or his assistant and wait, usually in the witness waiting room. 

 

3. Waiting and preparing 

While waiting, the witness should not discuss the contents of their evidence with others, including other witnesses who have already testified. The witness should not leave the courtroom unless notified that their appearance is not required. If the witness needs to leave early, they should inform the prosecutor or their assistant in advance so arrangements can be made. 

 

4. Attendance 

When summoned, the witness should follow the instructions of the court clerk and step into the witness box. 

 

5. Swearing an oath 

Before giving evidence, the witness must swear to tell the truth.  

  • Oath: If the witness is a Christian or Jew, the witness should hold the New Testament (or the Old Testament for Jews) and read out the following oath: 
    “I, (name), swear by Almighty God that the evidence I shall give shall be the truth, the whole truth, and nothing but the truth.” 
  • Affirmation: If the witness is not a Christian or Jew, he is required to read out the following affirmation: 

“I, (name), solemnly, sincerely, and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth, and nothing but the truth.” 

 

6. Examination-in-chief 

The lawyer who called the witness will ask the questions first. The questions are designed to guide the witness to state facts, such as when, where, who, and what happened. Generally, lawyers are not allowed to ask leading questions. 

 

7. Cross-examination 

The lawyer representing other parties will ask questions to test the credibility, consistency, or accuracy of the witness’s evidence-in-chief. The questions may be challenging, trying to identify inconsistencies or weaknesses. 

 

8. Re-examination 

The lawyer who called the witness may ask further questions to clarify any points raised in cross-examination or to provide additional clarification. 

 

The judge may question the witness during examination-in-chief, cross-examination, or re-examination. 

 

9. Finishing giving evidence 

When the witness has finished giving evidence, the judge will direct them to leave the witness box. The witness should not leave the courtroom unless authorised by the judge. 

 

Points to note when giving evidence  

1. Answer honestly 

The witness should state only what they have personally experienced or know to be true. If they do not remember or are not sure, honestly say “I don't remember” or “I don't know”; do not speculate or make things up. 

 

2. Remain calm 

Cross-examination can be stressful, and the lawyer may question the witness’s memory or credibility. Stay calm, focus on the facts, and avoid being argumentative or emotional. 

 

3. Speak clearly 

The witness should answer in simple, direct language. If they don't understand a question, they should politely ask for a repeat or clarification, such as “Can you explain that again?” 

 

4. Dress and etiquette 

The witness should dress neatly and professionally (e.g., suit, shirt), avoid casual clothing (e.g., T-shirt, jeans), and observe court etiquette. 

 

Language  

Trials in criminal court are usually held in Chinese or English. However, the witness can give evidence in a language they are familiar with. If the witness does not understand the language used in the trial, the court will arrange for an interpreter to translate. 

 

Fees  

Witnesses are entitled to a witness allowance to cover expenses incurred while attending court. The amount of the allowance is fixed and can only be paid with the approval of the judge. The witness should ask the prosecutor to claim it on their behalf. 

 

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