HKSAR v. CHOW YUEN HAN

HCMA772/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 772 OF 1999

(On appeal from ESCC 672 of 1999)

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R U L I N G

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1. On 31 January 2000, pursuant to an application by Mr Egan for the appellant, I ordered that the appellant be supplied with a set of transcripts of the proceedings in the court below. These are my reasons.

2. The appellant was convicted before a magistrate on one count of soliciting for an immoral purpose, contrary to section 147(1)(a) of the Crimes Ordinance. She was fined $3,000 and in addition, she was sentenced to three months' imprisonment suspended for two years. She lodged an appeal against her conviction on 14 July 1999.

3. Prior to May 1999, the appeal bundle for all magistracy appeals would include a full set of transcripts of the proceedings in the court below. In May 1999, the standing practice was changed, on a trial basis, so that the bundle would no longer include a full transcript. The trial period was to last initially for six months and was subsequently extended for a further six months. The streamlined appeal bundle is modelled after the appeal bundles on appeals from the Court of First Instance and the District Court.

4. Under the new arrangement, an appellant could still obtain a full transcript of the proceedings or any part thereof on application to the Registrar. He will have to support his application with reasons. If the Registrar considers that sufficient reasons has been given, the transcript applied for will be supplied free of charge and will be included as part of the appeal bundle.

5. In the present case, the appeal was listed to be heard on 22 September 1999. On the day before the appeal, the court received a letter from the appellant applying for a copy of the full transcript of the proceedings and also for an adjournment of the hearing. The appellant was informed that she should attend court on the following day and to make the application to the judge hearing the appeal.

6. On 22 September 1999, the appellant appeared in person before Beeson J. She applied for a full transcript of the proceedings but gave no specific reason in support of her application. The learned judge refused her application but granted an adjournment so that she could seek legal advice generally on the appeal. She was specifically informed that she could renew her application for the transcript provided she could give sufficient reasons to support her application.

7. Towards the middle of November, the appellant's solicitor wrote to the court and stated the reasons why a full transcript was needed. Having considered the application, Beeson J took the view that the reasons advanced were not sufficiently cogent and she refused the application. The appeal was relisted for hearing on 2 December 1999. In the meantime, no perfected grounds of appeal had been filed.

8. Mr Egan appeared for the appellant on the appeal. By way of a preliminary issue, he argued that as a matter of law, the appellant was entitled to a full set of transcript of the proceedings by virtue of section 116(1) of the Magistrates Ordinance. That being the case, he did not put forward any grounds justifying why the transcript was necessary for the appeal. Counsel's submission had obviously caused some concern on the part of the learned judge who thought that the entire exercise had an administrative implication. She adjourned the matter for consideration.

9. On 13 December, she handed down her ruling in which she indicated she was unable to resolve the preliminary issue as an appeal. She saw it fit to adjourn the appeal sine die and left it to the wisdom of counsel for the appellant "to take whatever steps he deems appropriate in order to pursue his request for a transcript". The issue of whether an appellant is entitled to a set of full transcript of the proceedings as of right, by virtue of section 116(1) or by any other provisions under the Magistrates Ordinance was in effect outstanding.

10. The case was listed before this court for mention on 31 January 2000.

11. In two letters dated 3 and 19 January respectively, Mr Egan, for the first time, stated his reasons for requiring the transcript. It was based upon those reasons that I made the order for the transcripts to be supplied and not on the basis that the appellant was entitled as a matter of right or by virtue of any enactment in the Magistrates Ordinance.

12. I think it would be appropriate for this court to resolve the issues raised by Mr Egan on the construction and the effect of the provisions of section 116(1) of the Magistrates Ordinance.

13. Mr Egan submitted that in every appeal brought under section 113 of the Ordinance, the appellant has a right, by virtue of section 116(1), to be supplied with a set of full transcript of the proceedings. The section reads :

"As soon as practicable after the appellant has lodged a notice of appeal, the magistrates' clerk shall transmit to the Registrar the notice of appeal, the depositions and such copies thereof as the Registrar may require, and the statement by the magistrate of his findings on the facts and other grounds of his decisions, and thereupon the Registrar shall enter the appeal, and shall in due course give notice, together with a copy of the depositions, to the appellant, ...."

He further submitted that the word "depositions" should be construed to mean that it included the transcript of the record of proceedings recorded by mechanical devices in the court.

14. It is to be noted that nowhere in the Magistrates Ordinance is the term "depositions" defined. Nothing in the Ordinance is capable of suggesting that the term "deposition" includes notes of proceedings taken by the magistrate or recorded by the mechanical device. My view is reinforced by the provisions of section 34 of the Ordinance which reads :

"34. Minute of proceedings

(1) In all proceedings under this Part the magistrate at the hearing shall take or cause to be taken a full minute in writing, or a record whether by means of shorthand notes or mechanical means or otherwise, so far as circumstances permit, of the following matters -

(a) ...

(b) ...

(c) the evidence or depositions of the witnesses;

....." (my emphasis)

Clearly "depositions of the witnesses" is not the "evidence" at the trial.

15. Likewise in sections 81 and 86 of the Ordinance, both terms again appear together. Section 81(1) provide that the magistrate shall :

"in the presence of the accused proceed to take evidence for and on behalf of the prosecutor".

In section 81(2), the section refers to :

"the accused or his counsel shall be at liberty to put questions to any witnesses produced against him .... the depositions or evidence of the prosecutor and his witnesses shall, in the presence of the accused, be read over to and signed respectively by the witnesses ...." (my emphasis)

16. By reference to the above provisions, one can readily deduce that whatever meaning the term "deposition" carries, it could not be taken to mean that it includes the transcript of the oral evidence of the witnesses in the proceedings.

17. Returning now to section 116(1), the provisions of which, in my view, does not assist Mr Egan's argument that an appellant is entitled to the transcript of the proceedings in every appeal. The section only obliges the magistrates' clerk to submit the notice of appeal, the depositions and such copies thereof as the Registrar may require, and a statement by the magistrate of his findings in order to compile the appeal bundle. For fear of repeating myself, nothing in the section (or for that matter in the entire Ordinance) says that the term "depositions" could be taken to mean to include transcript of proceedings. Since the term is not defined, it must be the case that it is for the Registrar to decide what should be included in the standard appeal bundle. It could not have been the intention of the legislature that the power of interpretation was to be vested with a clerk in the magistracy.

18. The present practice is that supplied in the streamlined bundle would be the part of the transcript including the closing submissions of the parties, the oral reasons given by the magistrate at the end of the proceedings and the statement of findings. If an appellant requires any other part of the transcript of proceedings for the appeal, it would be open to him to write to the Registrar, state his reasons and apply for the same to be provided.

19. It has to be noted that depositions of witnesses or witness statements are seldom used at trials in the magistracy. In any event, not all depositions are admissible as evidence at a trial. What would be of interest to Mr Egan or indeed to most appellants would be the transcript of the recording and not the depositions of the witnesses.

20. I am aware of the provisions of section 35A which gives the right to any party to inspect free of charge, the minute taken by the magistrate and the right to obtain a copy of such minute on the payment of a prescribed fee. If a party wishes to obtain the transcript of the notes of proceedings for the purpose of determining whether there is any ground of appeal, he would have to make an application under section 35A and obtain the transcript on the payment of the prescribed fee. If in due course, he wishes to rely on any part of such transcript supplied for the purpose of appeal, he has to indicate to the Registrar and also to inform the other party to the appeal that such parts should be included in the appeal bundle. It would then be for the Registrar to decide whether such parts should be included.

21. In so far as the present scheme is an attempt to bring the contents of magisterial appeal bundle in line with those of the District Court and the Court of First Instance, I cannot see the rights of an appellant could have been compromised in any way. Any party to the appeal can apply to the Registrar provided he can give good reasons and the transcript so ordered would be supplied free of charge.

22. I hope my ruling would put to rest the long entrenched misconception that an appellant in a magisterial appeal is entitled as of right by virtue of the provision of the Magistrates Ordinance to a full set of transcript of the proceedings in every case on appeal.