Status of Spouse

36. If it is decided that a victim should be compelled to attend court, the prosecutor must keep Section 6 of the Evidence Ordinance, Cap 8, in mind. It provides:

    Nothing in this Ordinance shall render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband, in any criminal proceedings.

37. However, Section 57 of the Criminal Procedure Ordinance, Cap 221, provides that the spouse of the accused shall be competent to give evidence for the prosecution, unless both spouses are standing trial together. Subject to the same exception, the spouse of an accused is also compellable to give evidence for the prosecution in respect of any specified offence. A specified offence is one which:
    • involves an assault on, or an injury or threat of injury to the spouse of the accused;
    • involves causing the death of, an assault on, or an injury or threat of injury to a child of the family who was under the age of 16 or a mentally incapacitated person (or is so incapacitated at the time of trial);
    • is a sexual offence committed on a child of the family who was under the age of 16 or a mentally incapacitated person (or is so incapacitated at the time of trial);
    • consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of any of the aforementioned offences.
38. If the spouse of the accused is called to testify for the prosecution, he or she may apply to the court for an exemption from giving evidence. In exercising its discretion, the court will consider whether the giving of evidence under Section 57A of the Criminal Procedure Ordinance, Cap 221 would cause a substantial risk either of serious harm being caused to the marital relationship, or of serious emotional, psychological or economic consequences for the spouse. The court will also have regard to the nature and gravity of the offence and the importance of the evidence the spouse is in a position to give, and whether there is insufficient justification for exposing the spouse to that risk.