THE QUEEN v. MA KWOK-KUEN
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DCCC000088A/1980
IN THE DISTRICT COURT OF HONG KONG
HOLDEN AT VICTORIA
CRIMINAL JURISDICTION
CASE NO. 88 OF 1980
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| The Queen | ||
| against | ||
| MA Kwok-keen |
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Coram: Crude, E.G..
Date of Judgment: 13th August, 1980.
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RULING
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1. The transcript of the trial in Victoria Case No. 62 of 1978 having being admitted pursuant to Section 44 of the Crimes Ordinance Cap.200 as evidence in respect of the 4th and 5th Charges which relate to perjury, the prosecution now seeks to produce evidence of what occurred at that trial in respect of the 1st, 2nd and 3rd charges which relate to alleged attempts to pervert the course of justice contrary to the Common Law. It is common ground that the statutory means of producing the transcript under Section 44 is limited to offences under Sections 31, 38 and 39 of the Crimes Ordinance and cannot be invoked in respect of the 1st, 2nd and 3rd charges.
2. The prosecution has therefore intimated that it proposes to call the official Court shorthand writers who took the transcript in the earlier trial to prove those parts of the trial they respectively recorded. The first of such witnesses has now been called and Counsel for the Crown has invited her to refresh her memory from her shorthand notes taken during the trial from which she later typed that portion of the transcript covered by those notes.
3. Counsel for the defense has objected to her having her shorthand notes continuously in front of her while she is giving evidence on two grounds. First, that if she were to use them to in effect read the whole of evidence-in-chief, the such action would go far beyond merely refreshing her memory. Secondly, that Counsel is unable to understand her shorthand notes and is therefore prevented from perusing them and cross-examining upon them. As to the first ground Counsel for the Crown refers me to R. V. Bryant & Dickson (1946) 31 Cr. App. R. 146 and submits that "refreshing her memory" has a wide legal meaning and covers a case where a witness has wholly forgot-ten the details on which she is about to give evidence but is able to do so only by looking at a document she previously compiled in respect of those details, provided that document was compiled contemporaneously.
4. I am well satisfied that the right of a witness to refresh her memory had this wider meaning. As Arch bold (40th Edn.) page 343 declares, the rule may be stated as follows:
"A witness may refresh his memory by reference to any writing made or verified by himself concerning and contemporaneously with, the facts to which he testifies."
5. Later at page 345 Arch bold continues:-
"It is not essential that the witness shall have an independent recollection of the facts."
6. If the document complies with the rules then a witness is entitled to refer to it while she is in the witness box. Once the document becomes a document she may look at to refresh her memory, then, in my view, subject to the Court's overriding discretion, there can be no restriction on a witness continuously referring to the document. For her evidence then ceases solely to be a feat of memory, so far as it is refreshed from the document. Circumstances may therefore arise where an intelligent and meticulous witness may wish to refer to the document before she answers each question put to her. In such a case a trial may become lengthy and laborious. I am in no doubt that a witness in those circumstances may adopt that practice subject to the overriding discretion of the judge. It seems to me that Counsel for the defendant's objection on this ground is really not against a witness's continual reference to the document, but against the rule itself. On that issue there can be no doubt that the rule is very well settled.
7. As to the second ground of objection, Counsel for the defendant also referred me to Cross on Evidence (4th Edn.) 205,206. I have considered those passages. I am also of the view that at least as a matter of practice Counsel for the defendant should be able to inspect the document used to refresh the witness's memory. Clearly he is unable to understand the witness's shorthand notes. Counsel for the Crown, at one stage, started to refer to the copy of the transcript personally typed by the witness from her shorthand notes but did not pursue this matter. I am satisfied that it is proper for the witness to refer to that document to refresh her memory and that, of course, it is a document other persons can read and understand. R. V. Cheng (1976) 63 Cr. App. R. 20 is authority for the proposition that a witness may refresh his memory from a transcription of notes where only the notes were made contemporaneously, provided the transcription is substantially the same as the original notes. So in the instant case, if a witness is able to swear that the transcription of her shorthand notes is an accurate transcription of those notes, then she may refresh her memory from the transcript.
8. In replying to the defence objection, Counsel for the Crown then went further and suggested that it was open to the prosecution to produce that portion of the transcript taken by a particular witness through that witness. In other words instead of the witness merely using that document to refresh her memory prior to giving oral evidence, she may produce that transcript in evidence as an exhibit. In reply Counsel for the defendant submitted that would be to extend the law of evidence.
9. I appreciate the difficulty Counsel have been under because of the limited library resources at this Court. However, during the adjournment I have given this submission further consideration. The most common type of case where the prosecution must prove what occurred at the previous trial is a perjury trial. No evidential difficulties arise in that type of trial because of the statutory provisions of Section 44 where no witness need be called to give evidence provided a certified copy of the record of proceedings is produced. Section 44 is clearly a simple statutory means of proving the proceedings of the earlier trial without having to prove it by calling as witnesses persons who were present at that trial. There is no similar statutory provision to enable this procedure to be followed in respect of the first three charges. The evidential requirements are therefore those prescribed by the common law or any other statutory provisions.
10. In the absence of special statutory enabling provisions then as a matter of general principle, it would seem that the best evidence of the previous trial would be to have the earlier transcript produced by those Court shorthand writers who acted in an official capacity at that trial. The decision of the English Court of Appeal in R. V. Payne (1971) 1 W.L.R. 1779 while it dealt with the availability of an official transcript for appeal purposes - where separate statutory provisions exist - emphasises the importance, in the interests of justice, of a full official transcript being available in subsequent proceedings where the earlier proceedings are material and the dangers of a Court having to rely on something less.
11. So if it is, as matter of law, possible for the transcript to be produced as the Crown now indicates, that seems in the interests of justice desirable.
12. Counsel for the Crown also referred to R. V. Bryant and Dickson (supra) on this issue. In that case the Lord Chief Justice refers to the fact that if the maker of the document were deceased the document itself would be admissible. However, I do not think that helps the prosecution for the admissibility of the document in those circumstances could be founded on the exception to the hearsay rule which applies to statements by deceased persons and in particular a declaration in the course of duty - Archbold (supra) 813.
13. What therefore is the position at common law? There are at least two statements in Archbold (supra) which are not unfavourable to the prosecution. At page 1692 dealing with perjury that authority states:-
"It is sufficent for this purpose if the witness states from recollection the evidence which the defendant gave, though he did not take it down in writing."
14. It is at least arguable that the better evidence of such a witness would be where he had taken it down in writing and produce that writing. At page 792 dealing with proof of previous convictions, and acquittals the general statements is made:-
"... the production by the officer of the court ... of the caption, the indictment, with the indorsement of the defendant's plea, the verdict, and the sentence of the court upon it, together with the minutes of the trial, made by the officer of the court, was held sufficent evidence of the former trial..."
15. There express reference is made to the "minutes of the trial" and three old cases are cited which I have considered. One of those cases was R. V. Newman 2 Den.390, 169 E.R.552 where it was held that even though the express statutory provisions of proving the previous trial were not followed, the procedure adopted complied with the alternative common law requirements.
16. I am satisfied that Section 44 merely provides a convenient statutory short out to facilitate the proof of the previous trial in perjury proceedings and does not alter the common law. As to any other Hong Kong statutory provisions if the transcript of the earlier trial were a public document a copy may be admissible under s.18 of the Evidence Ordinance Cap. 8 but as I was not addressed on that alternative I will make no ruling upon it. As to the common law in Hong Kong, Counsel did not cite any Hong Kong decisions to me on this issue. No doubt in Hong Kong perjury trials the provisions of Section 44 are relied upon and in other trials I understand that s.65C of the Criminal Procedure Ordinance, Cap. 221 may have been resorted to. Neither provision is applicable in the present circumstances.
17. On the basis of R v. Newman (supra) and the extracts I have cited from Archbold it would seem that the transcript may be produced by the appropriate officers of the Court. If this is the common law of Hong Kong it is consistent with the Hong Kong legislative approach to this matter as illustrated by Section 44 of the Crimes Ordinance and Section 79 of the Criminal Procedure Ordinance. The evidence so adduced would, of course, only be prima facie evidence of what occurred at the trial but it is evidence recorded and produced by officers of the Court, namely the official shorthand writers, appointed by the Chief Justice under the Criminal Procedure Ordinance pursuant to Rule 5 of the Criminal Appeal Rules.
18. Alternatively, are the transcripts also admissible at common law on the basis that they are contemporaneous documents to which the witnesses have found it necessary to refer wholly to refresh their memory?
19. As Cross (supra) notes at pages 205, 206 the common law has developed differently in different jurisdictions as to whether the document in those circumstances is admissible in terms of Counsel for the Crown's latest submission. I recognise that in England there is authority which holds it is not. However, there are other decisions which hold that where a witness is wholly reliant on a document to refresh her memory, in the widest sense, then that document is admissible as evidence of the facts recorded in it although the weight to be given to that document is a separate issue.
20. I have not been referred to any Hong Kong decisions but I have considered the New Zealand Court of Appeal decision in R. v. Naidanovici (1962) N.Z.L.R. 334. There a majority of the Court of Appeal held that where a person having no independent recollection of matters included in a document, recorded by her contemporaneously, refreshes her memory from such a document then the document itself, is admissible in evidence. As North J., said in that case :-
"Where a witness has no independent memory of the transaction, the document itself, once it is properly proved, provides the best evidence of the matter it contains ... Indeed simply on the grounds of convenience it seems in every way preferable that the document itself should be received in evidence rather than that the Court and the jury should have to recorded oral evidence of what the document purported to say, for there is always the chance of error creeping in to the transcript of the evidence."
21. That judgment, with respect, seems to accord with common sense. It certainly seems to be in the interests of justice that that procedure should be followed and in this trial too, it has the added, if always incidental, advantage of convenience.
22. After a consideration of all these authorities and the submissions made by Counsel I am satisfied that the common law in Hong Kong at least insofar as the proof of the prior proceedings is concerned is the same as that declared by the Court of Appeal in R. v. Naidanovici.
23. I therefore further rule that the record of the proceedings in the previous trial may be adduced by the shorthand writers in those proceedings producing, in this trial, those portions of the transcript which they personally recorded and transcribed provided the only recollection by those witnesses of the prior proceedings is their notes as now recorded in that transcript.
Date the 13th day of August, 1980.
| (G.N. Cruden) | |
| District Judge |
Representation: