Competence to give evidence in court

Competence to give evidence in court

Mentally incapacitated persons (MIPs) who, at the time of questioning, appear unable to properly understand the facts or to state them truthfully are considered incompetent to give evidence in any proceedings. They also cannot be required to appear as witnesses unless the court or the person conducting the hearing has given prior consent: Evidence Ordinance (Cap. 8), section 3(b).

However, mental illness does not make a person incapable of giving evidence in court. If a person is of competent understanding to give evidence, and is aware of the nature and obligation of an oath, then he/she should be permitted to give evidence.

If necessary, special accommodation can be given to mentally incapacitated persons (MIPs) when they are giving evidence, to ensure they are protected and given professional assistance and support. This includes giving evidence by live television link (Criminal Procedure Ordinance, section 79B), video recorded testimony (section 79C), or by a deposition taken in advance (section 79E).

If there is a risk that exposing the MIP to a full criminal trial would endanger the physical or mental health of the MIP (including a MIP who is a defendant in the criminal case), then a party to the proceedings can apply for leave for a deposition in writing to be taken from the MIP. If leave is granted, the magistrate/judge can take the deposition at any time before the trial starts (Criminal Procedure Ordinance, section 79E).