IN THE SUPREME COURT OF HONG KONG
CIVIL APPEAL NO.32 OF 1970
Coram: Blair-Kerr, Mills-Owens and Huggins, JJ.
Date of Judgment: 7 January 1971
Huggins, J: Before parting with this case there is something which we wish to say. In February of last year two divisions of thisCourt, on consecutive days, made reference to the provisions of Order 68 of the Rules of the Supreme Court: WO Ping-ching v. Dragon Knitting Factory Civil Appeal No.5 of 1969 and South-east Asia Shipping & Trading Co., Ltd. v. James HWO Civil Appeal No. 31 of 1969. Unfortunately the observations made in those cases have not been reported and as, in the present casealso, the record of evidence placed before the appellate court was inadequate for the proper consideration of the appeal we thinkit right to repeat what was said there.
2. By Order 68 Rule 1 (1)
Where a shorthand note has been taken Rule 2 (1) provides that
In the present case there is no record in the papers before us to show that the trial judge made any direction under Rule 1 (1) orany intimation under Rule 2 (1) nor, so far as we can see, was there any justification for such a direction or such an intimation.Yet we have had nothing but the judge’s own note. As in the earlier cases “the note recorded by the judge is clearly the sort ofnote which judges take to remind themselves of the evidence when preparing to sum up to a jury or deliver a judgment. It is simplynot good enough for any person who was not present at the trial, to whom it necessarily appears incomplete, ambiguous and, in somecases, nonsensical”. Furthermore we are informed by counsel, all three of whom were present at the trial, that concessions of factwere made in the lower court of which we have no record whatsoever.
3. It is the manifest intention disclosed by the Rules that as a general rule a shorthand note shall be taken and made available uponan appeal. There can be no question of making a blanket direction or intimation, which would defeat that manifest intention: eachcase must be considered on its merits. Nor should a direction or intimation be lightly made – and never without hearing the partiesor their professional advisers. Where a direction is made under Rule 1(1) the judge should state very clearly his reasons for departingfrom the normal practice in that particular case and no such direction should be made unless there are compelling reasons. Althoughan intimation has been made under Rule 2(1) an appellate court may, if it thinks such a course desirable, nevertheless call for atranscript of the shorthand note. If no shorthand note has been taken and the judge’s note proves to be inadequate there may be nosatisfactory method of ascertaining what transpired at the trial.
B. Bernacchi Q.C. & H.C. Miu (L.S. Shum & Co.) for Appellant.
E. Thistlethwaite for Respondent.