Witness protection scheme could harm accused, says barrister
An accused could suffer injustice because of an ordinance that allows law enforcement agencies to keep information about a protected witness from the court and the defence, a veteran barrister said.
In some cases, arrangements made by police or the anti-graft body for a person - often the primary prosecution witness - to enter the witness protection programme could be of vital importance to the defence case, Andrew Bruce SC, a member of the Bar Council and co-author of Criminal Evidence in Hong Kong, said.
But under the Witness Protection Ordinance, the officers in charge of the programme are not required to divulge in court any information or produce any document in relation to the programme.
'How that person came to be in that programme is something that you may think a defence lawyer has to know,' Mr Bruce said at a conference on commercial crime organised by Courses & Seminars Limited. 'For example, why is that person in fear? What's so scary about my client, who wouldn't hurt a fly?'
Offers of stipend, accommodation and arrangements for the witness to emigrate could also have a significant impact on the way the defence conducted its case, he said.
The information could sometimes indicate whether a witness' testimony was 'deliberately or unconsciously biased because he or she was being looked after by the law enforcement agencies', resulting in injustice to the accused.
Mr Bruce stressed he strongly supported the need for the protection of Hong Kong citizens who became witnesses.
'But there may be cases where the ordinance is too rigid and that needs to be addressed,' he said. 'I would guess for 99 out of 100 cases, the information is not that important. But it doesn't mean that the one per cent is not important.'
The conference comes in the wake of the jailing of a top criminal lawyer last month over the disclosure of the identity of a protected witness, a case in which a former South China Morning Post reporter was a witness for the prosecution.
Andrew Powner, a partner of solicitors' firm Haldanes and a member of the Law Society's criminal law and procedure committee, said the decision-making process for any prosecution witness included in the programme was something legal practitioners in criminal trials needed to examine carefully. But he said the task was difficult because the ordinance denied them access to records showing how the witness was assessed.
'Defence lawyers cannot effectively cross-examine the witness or the approving authority on whether the terms offered for witness protection, including a possible immunity from prosecution, provide any inducement to that witness to do anything other than to tell the truth in court,' Mr Powner said. 'In the absence of proper scrutiny by defence lawyers, we can only hope that the approving authority is properly applying the ordinance.'
But Clive Grossman SC, vice-chairman of the Bar Council, said he did not see any deficiency in the ordinance, adding that the defence could always raise the issue with the judge.