b. Spouses as witnesses

b. Spouses as witnesses

For the prosecution

The spouse of a defendant is a competent witness for the prosecution (section 57(1), Criminal Procedure Ordinance (Cap. 221)).

Section 57(1), (3) and (4) of the Criminal Procedure Ordinance (Cap. 221) provide that a defendant’s spouse is competent and compellable to give evidence against the defendant if the offence:

• involves an assault on, or an injury or threat of injury to, the husband or wife of the accused;
• involves causing the death of, an assault on, or an injury or threat of injury to a child of the family;
• is a sexual offence alleged to have been committed in respect of a child of the family; or
• consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, any of the foregoing offences (“specified offence”).

However, when a husband and wife are jointly tried, neither spouse is considered competent or compellable for the prosecution (section 57(5), Criminal Procedure Ordinance (Cap. 221)).

For the defendant

The spouse of a defendant is a competent and compellable witness for the defendant (section 57(1) and (2), Criminal Procedure Ordinance (Cap. 221)).

For the co-defendants

The spouse of a defendant is a competent witness for co-defendants (section 57(1), Criminal Procedure Ordinance (Cap. 221)).

The spouse of the defendant is a compellable witness for the co-defendants in respect of a specified offence (see above).

Right to apply for exemption from obligation to give evidence

Even if the defendant’s husband or wife is compellable to give evidence for the prosecution or the co-defendant, the husband or wife may at any time apply to the Court for an exemption under section 57A of the Criminal Procedure Ordinance (Cap. 221). The two grounds for making this application are (i) substantial risk of serious harm being caused to their relation and (ii) substantial risk of serious emotional, psychological or economic consequences for the husband or wife. The Court will have regard to the nature and gravity of the offence charged and the importance of the evidence that he or she is expected to give.

The prosecution is prohibited from making any question or comment about the husband or wife of an accused who has applied for or been granted or refused an exemption.