TNAG-1555-FCO40-2119-Broadcasting-in-Hong-Kong-1986 — Page 114

6.57

Disadvantages

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Some persons may take the view that the adoption of the option put forward in paragraphs 6.51 to 6.53 would represent a move which would be too radical a step in the constitutional arrangements of Hong Kong. There is a deep concern about secrecy in criminal trials and over-powerful investigative methods and techniques being made available for prosecutions. For example, there is a provision, section 123 of the Criminal Procedure Ordinance, Chapter 221, which can be used to secure anonymity for witnesses and proceedings in camera. But this provision is seldom used, so strong is the fundamental principle of trial in open court. It is important therefore to appreciate that what is being put forward as an option is a pretrial device to assemble evidence. At present, pretrial collection of evidence is a confidential police inquiry. The power to compel witnesses is already given to a magistrate at committal, and at any court of trial. The power of immunity is not new but exercised regularly both at committal and at trial. The District and High Court have wide powers to punish contempt. What is being done is to bring these powers together into a convenient bundle to counter the certain reaction of senior triad figures to searching investigation.

THE USE OF ACCOMPLICES AS WITNESSES

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It is sometimes necessary to employ as prosecution witnesses, persons who have been involved with the defendant in the crime for which he is being prosecuted. Unless that witness has pleaded guilty to offences that encompass the activity about which he will give evidence, he is entitled to, and the judge is obliged to remind him of, his privilege against self incrimination. In these circumstances, he will not normally give evidence without an assurance that he will not be prosecuted. This assurance, which is given in written form on behalf of the Attorney General, is commonly known as an immunity. It is expressed to be conditional on that witness giving full and true evidence at the trial and any other related criminal proceedings. The Crown attempts, as far as practically possible, to limit the offer of immunity to those individuals who are the least involved or morally culpable among a group of people who have been involved in criminal activity. Unfortunately, unless the prosecution has a strong case against the witness it proposes to employ, there is no way of enforcing the bargain it has struck against the witness if he alters his evidence to weaken the Crown case. This is because the statement the witness signs after agreeing to become a Crown witness is probably not admissible against him. It is not regarded in law as voluntary. It is made under the offer of an inducement.