THE QUEEN v. DEY CHI KONG

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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[The work involved in the preparation of transcripts is considerable. Unless the evidence has already been transcribed, the provision of transcripts of the evidence of witnesses at an earlier trial will not be ordered for the purposes of a retrial as a matter of course. If the need arises in the course of the retrial to identify what the evidence of the witness was at the original trial, the court reporters can be requested to bring the print-out or shorthand note of the relevant passage to court. In most cases, the trial can continue while that is being done.]

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REASONS FOR RULINGS

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1. These two cases are due to be tried in the next few weeks. They are both retrials. In Dey Chi Kong, the jury was unable to agree on its verdict, and a retrial of the Defendant was ordered. In Law Wai Choi and Leung Yuk Keung, the Defendants' convictions were quashed on appeal, and the Court of Appeal ordered that they be retried. I presided over the pre-trial reviews in both cases.

2. The pre-trial reviews, which took place on 15th and 18th March 1996, were unremarkable save for one aspect of them. In both of them, I was asked to direct that transcripts be provided of evidence given at the earlier trials. In Dey Chi Kong, in which the Defendant faces a single charge of rape, the prosecution applied for transcripts of the evidence given by (a) the complainant, (b) her friend who would be giving evidence of a recent complaint, and (c) the Defendant himself. The Defendant's counsel supported that application. In Law Wai Choi and Leung Yuk Keung, in which the Defendants face two charges of trafficking in heroin, Law Wai Choi's counsel applied for transcripts of the evidence given by all the witnesses who had been called at the previous trial by the prosecution.

3. When counsel initially applied for these transcripts, they did not advance any grounds. They were under the impression that the applications would be granted almost as a matter of course. When I questioned the correctness of that assumption, counsel were unable to persuade me that grounds for granting their applications had been made out. However, I said that I proposed to find out if there was a well-established practice that transcripts of the evidence given at a previous trial are automatically made available for the retrial: I did not want to be a maverick swimming against the tide of a practice which counsel was entitled to rely upon. Accordingly, I did not reach a concluded view on the applications at the time.

4. The enquiries which I caused to be made have shown that there is no such well-established practice. It may be that judges have not infrequently in the past directed the provision of transcripts when the grounds for doing so have been filmsy and on occasions when no grounds have been advanced at all. But there is clearly not a practice which is so settled that fairness and justice require me to order that transcripts be provided when valid grounds for doing so do not exist. When my enquiries were concluded, I directed my clerk to inform the parties that the applications were refused. She did so on 19th March. However, since counsel in these two cases may not have been alone in thinking that the transcripts would be ordered almost as a matter of course, I have decided to reduce my reasons into writing. Although the hearings before me were in chambers, I give leave for these reasons to be circulated once both trials are over so that my views can receive a wider currency.

5. The work involved in the preparation of transcripts is considerable. If a witness gives evidence through an interpreter, one hour's evidence will take (a) about 8 hours to transcribe if the witness's evidence was initially recorded by a stenographer using a CAT machine (computer-aided transcript), or (b) about 9 hours to transcribe if the witness's evidence was initially recorded by a shorthand-writer using shorthand. The time will be significantly longer, of course, if the witness gives evidence in English, because he will be able to have said more in the same time. In view of the enormous amount of time involved in the preparation of a transcript of a witness's evidence, therefore, I have no doubt that the provision of such a transcript should only be ordered when justice and fairness requires it.

6. The only justification which can be advanced for the provision for the purposes of a retrial of a transcript of the witness's evidence in the original trial is to enable a comparison to be made of the witness's current evidence with the evidence which he had earlier given, for example, to enable counsel to put the witness's previous inconsistent evidence to him. I did not regard that as a sufficient justification for so significant an increase in the workload of the stenographers and shorthand-writers. In the present cases, it was not suggested that there were any grounds for thinking that any of the witnesses whose evidence was sought to be transcribed would change their evidence.

7. That is not a particularly powerful point, however, because I recognise that witnesses may change their evidence unexpectedly. The compelling point is that the same end (i. e. establishing in the current trial what the evidence was in the previous trial) can be achieved without the time and expense involved in the preparation of transcripts to cater for an eventuality which might not arise:

8. Rule 12 (1) of the Criminal Appeal Rules provides:

"The Registrar may, and on the direction of a judge shall, furnish to a party interested in a trial or other proceedings a transcript of the whole or of any part of the shorthand note of any such trial or other proceedings, on payment by such party interested of such fee per page as the Registrar may direct."

Neither prosecuting nor defence counsel told me that the prosecution or the Defendants' solicitors or the Director of Legal Aid was prepared to pay for the provision of transcripts. But even if any of them had been, I did not think that it would have been fair to foist unnecessary work on the court reporters simply because the litigants were prepared to pay for their time.

9. Finally, in one of the cases, counsel said that he wished to argue that a refusal to direct the provision of transcripts constituted an infringement of the Defendant's right to a fair hearing of the criminal charges against him accorded to him by Art. 10 of the Bill of Rights. It may be that after reading this judgment counsel would have taken the view that that was no longer arguable, but if he still wished to argue it, I would have heard the argument on the first day of the trial. That is no longer necessary in view of the following interesting postscript to this judgment.

10. Since the conclusion of my inquiries into (a) the Court's practice, and (b) the work involved in the preparation of transcripts, and the consequential refusal of the application for the provision of transcripts, I have been informed that it is the practice of the court reporters to prepare transcripts automatically if time permits them to do so. I therefore asked whether the transcripts of any of the witnesses in respect of whom the applications had been made had been prepared. I have now discovered that the transcripts of all the relevant witnesses have been prepared. Since the time involved in their preparation has already been incurred, I can think of no intelligent reason why their provision should now be withheld. I therefore direct the Registrar to furnish the parties with the transcripts requested, on payment by them of such fee per page as the Registrar may direct.