THE QUEEN v. FUNG SHU SING

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R U L I N G

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Macdougall, J.A.:

1. This is an application for bail pending appeal. The applicant was found guilty in the District Court on two charges of conspiracy to defraud and was sentenced on 17 February this year to two years' imprisonment on each charge with both sentences to be served concurrently.

2. The grounds on which the application is founded consist almost exclusively of attacks on the judge's findings on the evidence of three of the witnesses at the trial. It is accepted on behalf of the applicant that it was apparent, as indeed it must have been, at the time of formulating the application that it would be necessary to have a transcript of the evidence of those three witnesses for the purpose of this hearing.

3. With that in mind, and in an attempt to expedite matters, the applicant's legal advisers wrote to counsel who prosecuted on fiat, enclosing a copy of notes taken of the evidence by junior counsel, who with leading counsel appeared for the applicant at the trial, and asking whether he would confirm their accuracy. Counsel replied that he was unable to do so since he had not recorded the evidence given by witnesses when he was on his feet, and the notes which he had otherwise taken were not sufficiently detailed.

4. He suggested, however, that the applicant's legal advisers should request the ICAC officer who had assisted him at the trial and had kept a better record of the evidence, to make an appointment for them to view his notes. He added that although that officer might not be in a position to confirm the accuracy of. junior counsel's notes of the evidence, he had been notified of a possible approach by the applicant's advisers and was willing to cooperate with them. The matter does not seem to have progressed any further, and the result was that a transcript of junior counsel's note, whose accuracy was not agreed by the Crown, was before me for the purpose of this application.

5. Leading counsel, who appeared for the applicant both at the hearing of this application and in the lower court, while recognising the difficulty of proceeding on the basis of a record of the evidence that had not been agreed as correct, nevertheless urged me to take "a robust approach" and proceed with the hearing. He referred me to the approved transcript of the   judgment of the Court of Appeal in England in R. v. Landy No. 3183/B/79 in which the court granted bail pending appeal notwithstanding that it  had not seen the whole of the judge's summing-up. It is plain, however, that it was because counsel for the Crown accepted that part of the judge's direction on law was unsound that the court was persuaded to adopt that course. I therefore do not find this case to be of any assistance in the present application.

6. In all cases where bail pending appeal is sought after conviction in the High Court or the District Court, the applicant must first lodge his notice of appeal specifying at least the ground or grounds of appeal on which he seeks to rely at the hearing of the proposed bail application. If the nature of a ground requires an examination of the evidence given by one or more witnesses, and it is not possible to reach agreement with the Crown that the notes of evidence recorded by the applicant's legal representatives are accurate, application should be made to the Registrar of the Supreme Court for a transcript of that evidence to be prepared for the purpose of the bail application as well as for the hearing of the application for leave to appeal itself.

7. The matter would then be referred by the Registrar to the Directions Judge in criminal matters to make such order as he thinks fit for the preparation of the transcript. It is also open to the Directions Judge to cause the notes of evidence recorded by the applicant's legal representatives, and to whose accuracy the Crown has been unable to agree, to be sent. to the trial judge for his comments. This, however, is only done in exceptional cases where a full transcript is sought for the purpose of the bail application and its preparation would result in an unusually long delay in the matter coming on for hearing.

8. It is essential that the judge hearing the bail application should have before him the official transcript, an agreed transcript or a transcript approved by the trial judge of the evidence on which the applicant seeks to rely.

9. It being impossible to proceed on the present state of the papers, I order that the hearing of the application be adjourned to a date to be fixed after compliance with this requirement.