No penalties for witnesses, says law chief
THE Director of Public Prosecutions, Peter Nguyen, QC, said yesterday that he was virtually hamstrung from taking legal action against hostile witnesses accused of departing from prepared testimony.
Mr Nguyen said it would be extremely rare for him to seek judicial recourse in such matters.
There were major problems, he said, in obtaining acceptable proof to show a witness had recanted, been deliberately evasive, or had conducted themselves in a manner inconsistent with past behaviour.
Mr Nguyen said he was speaking in a general sense and not about a particular legal argument or case.
'It is rare that we will prosecute hostile witnesses,' he said.
'If we are talking about organised crime, it is a different situation all together because we have a new ordinance that enables us to summon witnesses.
'In any case, it is not a regular occurrence; it is rare that a witness will turn sour on us.' Mr Nguyen said there was little the prosecution could do to help witnesses to remember their evidence.
'If they forget, they forget,' he said, adding he did not believe penalties needed to be reviewed.
In the Evidence Ordinance, the court is able to treat a witness as hostile - and accept a witness' statement as direct evidence - if the person's testimony can be shown to be contradictory to that statement.
However, if a magistrate considers the witness has deliberately obstructed the court, contempt proceedings can be started.
A magistrate must apply to the Attorney-General for permission before being able to cite a person for contempt. But a judge has broader powers in compelling the witness to be brought before the court to answer specific allegations.
The vice-chairman of the Bar Association's special committee on criminal law and practice, John Mullick, said a hostile witness was usually devastating to a case.
'It weakens the whole force of their evidence and makes it, in most cases, worthless,' he said.
'It usually comes up in cases where there is some triad connection or family dispute. You also get it on occasions over vice cases . . .' He said the only other option with hostile witnesses was to initiate perjury proceedings.
Deputy Director of Crime, Assistant Commissioner David Hodson, agreed the police had a duty to safely deliver witnesses to court.
He said witnesses did not necessarily become hostile because they were scared or had been intimidated.
'It may be he is far from being in fear and for some reason or another has been accommodated by the people he was going to be giving evidence against,' he said.