HKSAR v. BIBI NUSRAT

HCMA352/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.352 OF 2000

(ON APPEAL FROM WSCC NO.15000 OF 2000)

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REASONS FOR JUDGMENT

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1. The appellant, Bibi Nusrat, was charged with two offences, Bigamy and Making a False Declaration for the Purpose of Procuring a Marriage. The appellant pleaded not guilty to the charges and was convicted of the Bigamy charge after trial. As to the other offence, the learned magistrate had duly acquitted her. The sentence imposed was a fine of $10,000. The appellant sought to appeal against the conviction.

2. Counsel for the appellant had raised a total of five grounds in this appeal. I was most concerned with the 5th ground which complained of a material irregularity in the trial in that the learned magistrate had failed to advise PW1 that he was not compellable to testify against the appellant.

3. The problem in this regard was the fact that PW1, Muhammad Akram, was, based on the prosecution's case, the lawful husband of the appellant. He had been called by the prosecution to give evidence against the appellant, his lawful wife. Of course, with any witness appearing in that capacity, one should immediately alerted about the issues of competence and compellability. According to s.6 of the Evidence Ordinance, Cap.8, husbands and wives are neither competent nor compellable to give evidence for or against each other in any criminal proceedings. There are, of course, common law and statutory exceptions to this fundamental principle. In this case, the parties had agreed that there was no problem of competence in relation to the Bigamy charge. However, the question of compellability would still be an issue.

4. In the book Bruce and McCoy's Criminal Evidence in Hong Kong (1995 ed.), this matter has been dealt with at length. In para.[355]-[400], it is stated, inter alia, that :

"Where a spouse is competent to give evidence for the prosecution, and is called to do so by the prosecution, the court must satisfy itself before the spouse gives evidence that he or she is aware that he is not compellable to do so: Hoskyn v Metropolitan Police Commissioner (above). The position should be explained to the witness before (the spouse) gives evidence: R v Pitt (1982) 75 Cr App R 254. If necessary the matter may be resolved by voir dire proceedings before the spouse gives evidence."

Further, it is also stated in para.[301] that :

"... If the prosecution calls a spouse to testify in a case in which he or she is neither competent nor compellable, this may be such an irregularity as to entitle an accused to have his conviction quashed on appeal: R v Yung Kit-mei Cr App 1025/81."

5. Obviously, the learned magistrate had not been made aware of this and as a result, she had failed to give the advice accordingly. The respondent tried to address this problem by arguing that in fact the defence had asked questions on this issue in the cross-examination of PW1. It was submitted that PW1 would not have refused to testify even if he had been advised of such a right.

6. I noted that questions were indeed asked by the defence as to why PW1 came to court to testify but the point made by defence counsel was that PW1's motive was to punish his wife. That was clearly an irrelevant consideration and the learned magistrate was right in raising some query about this. However, it was unfortunate that the issue of compellability was not there and then resolved by a proper advice from the bench. From the record, it was quite obvious that PW1 was rather defensive when he was being questioned by defence counsel. It may not be surprising as the cross-examination was lengthy and sometimes argumentative. Having said that, I could not speculate what would be PW1's reaction if he had been advised by the bench that he was not obliged to give evidence against his wife. In any event, justice must be seen to be done. I consider that the magistrate should have given the advice to PW1 herself, if not before PW1's evidence, at least at some stage during his evidence.

7. I had expressed some concern that what was now put forward as an obvious and fundamental point was not drawn to the attention to the magistrate at the trial. Counsel for the appellant, who was also defence counsel at the trial, assured me that this matter had escaped her attention at the trial but came up when she was researching for this appeal.

8. Whatever the situation, in the circumstances, I felt I have to allow the appeal on this point alone. If I need to express any opinion on the other grounds, I would have to say that I did not find them meritorious. I had invited the prosecution to address me on the question of retrial but such a course was not suggested.

9. I would therefore allow the appeal, quash the conviction and set aside the sentence.

10. Regarding the application for costs by the appellant's counsel in relation to the trial and this appeal, I would dismiss it. I considered that it was a technical point and in the particular circumstances, I was not prepared to grant the cost order as requested.