HKSAR v. CHOW YUEN HAN

HCMA 772/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 772 OF 1999

(On appeal from ESCC 672 of 1999)

_______________

________________

__________

R U L I N G

__________

1. This appeal against conviction although fixed for hearing on 2.12.99 did not proceed. A preliminary matter was raised when counsel for the Appellant advised the court that he was unable to file perfected grounds of appeal because Appellant, under current practice, had been refused a full copy of the transcript of proceedings. Counsel for the Appellant set out the basis of the application, which was that Appellant was entitled as a matter of law to a transcript and that the current practice pertaining to provision of transcripts was ultra vires.

2. Prior to May 1999, a full transcript was prepared for all Magistracy appeals. This practice was changed, on a trial basis, so that documents supplied for Magistrates appeals would be those allowed by the Criminal Appeal Rules governing provision of documents for appeals in the CFI and District Court. The trial period of 6 months during which this practice would be followed, was decided on after the Chief Judge consulted the profession, Secretary for Justice, Legal Aid and the Criminal Court Users Committee.

3. Appellants could still obtain a transcript of all or part of the transcript on supplying reasons. The Registrar of Appeals was to deal with these applications.

4. It is against that background that this Appellant lodged her appeal against conviction on a charge of Soliciting For an Immoral Purpose. On 14.7.99 she filed general grounds of appeal, the date of appeal was fixed for 22.9.99. On the 21.9.99 the court received a letter from Appellant, asking for an adjournment and a copy of the transcript. Appellant was told to attend court the next day, the appeal date.

5. On 22.9.99 Appellant appeared in person before me and repeated her request for an adjournment. She asked for a full transcript but that application was refused on the basis of the revised procedure, Appellant gave no specific reasons why a full transcript was necessary and it appeared to the court that a transcript was unnecessary as the Magistrate had traversed the evidence adequately in the Statement of Findings. The Appellant was told that she might wish to seek legal advice for her appeal and she was told that a further application for a transcript could be made on reason being showing why it was needed for the appeal. An adjournment of the appeal was granted.

6. No perfected grounds of appeal were filed thereafter. By a letter received 16.11.99, Appellant's solicitors gave reasons why a full transcript was needed. Their letter was referred to me, but as I did not consider the reasons sufficiently cogent to justify supply of a transcript, I refused the application. The 7 page Statement of Findings and counsel's submissions supplied to the Appellant covered the evidence and issues in sufficient detail for the appeal on the general grounds to proceed. No perfected grounds of appeal have ever been filed.

7. Counsel for Appellant argues that as a matter of law, Appellant is entitled to a full transcript of the appeal because of the provisions relating to appeals in Part VII of the Magistrates Ordinance Cap. 227. Section 113(1) of the Ordinance gives her the right to appeal 'from any conviction, order or determination of a magistrate'. Section 114 sets out procedures to be followed in filing general grounds of appeal, after which the Magistrate prepares a Statement of Findings which are to be served on the Secretary for Justice and the Appellant within 15 days after the notice of appeal was given.

8. Section 116(1) is the key to Appellant's submission. That section provides as follows; As soon as practicable after the appellant has lodged a notice of appeal, the magistrates' clerk shall submit 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 decision, 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, to the respondent and the Secretary for Justice as to the date, time and place for the hearing of the appeal. (Emphasis added)

9. The term 'deposition(s)' is not defined in the Magistrates Ordinance, or indeed in Cap. 1, but counsel for the Appellant relies on section 118(1)(a) of the Magistrates Ordinance as showing that the term must mean the transcript of proceedings.

10. That section, which is referable to the actual hearing of the appeal states 'the depositions taken before the Magistrate or a certified copy thereof shall, without prejudice to any other method of proof, be admissible as evidence of the evidence which was given and of the statements which were made before the magistrate, and generally that the proceedings therein recorded took place'.

11. Mr. Leung for the Respondent has submitted that if Mr. Egan's interpretation of section 116(1) is correct his arguments cannot properly be dealt with on an appeal, which this hearing is, but as an administrative decision which falls to be attacked and thus the Appellant must find another forum.

12. He referred to section 34 of the Magistrates Ordinance which describes the Minute of proceedings required to be kept by the Magistrate; that clearly is what is commonly referred to as 'the transcript of proceedings'. Section 35A allows "any party to the proceedings to which the minute relates", to inspect the register without payment of a fee and to have a copy of the minute on payment of a fee. Mr. Leung submits that this is what the Appellant can do if she requires a full transcript. Mr. Egan points out that the section on which Appellant relies is in Part VII of the Ordinance dealing specifically with appeals; that section 35A, a general section, does not assist the Respondent and that his client is entitled to the depositions which, he says, is the transcript of proceedings.

13. Dictionary definitions do not clarify the position. The Shorter Oxford definition gives as the primary meaning of "deposition", The giving of testimony on oath in court; the testimony so given spec. a sworn written statement that may be read out in court as a substitute for the production of the witness.

14. Stroud's "Judicial Dictionary" 5th ed simply refers to, "Depositions or statements on oath taken in a foreign country". Halsbury discusses depositions in a specialist sense, as evidence taken for the purposes of committal for trial, rather than as what is referred to as a "transcript of proceedings" or a Minute taken during a trial.

15. I am conscious of the fact that this is an appeal and that what Mr. Egan complains of is an administrative refusal to supply his client with the transcript of proceedings. He says he is unable to prepare perfected grounds of appeal without such transcript.

16. Having considered the matter, I am unable to resolve argument as an appeal.

17. Accordingly I adjourn the hearing of this appeal sine die and leave counsel for Appellant to take whatever steps he deems appropriate in order to pursue his request for a transcript.