Re Yick Fat Land Investment Co Ltd

HCCW000004/1966

IN THE SUPREME COURT OF HONG KONG

COMPANIES WINDING-UP

ACTION NO. 4 OF 1966

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Coram: Huggins, J.

Date of Judgment: 26 February 1969

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RULING

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Huggins, J: I indicated that I would give my ruling in this matter in open court.

2. Application is made for a copy of the notes which I took in chambers upon the hearing of an application to set aside an order obtained ex parte by the Official Receiver whereby he was authorized to make a return of capital to contributories in a company being wound-up by the court and whereby it was ordered that certain deductions be made from the amounts returned. A previous application was made by letter and it was then indicated to the solicitors that copies of my notes were not available. Not satisfied with that reply they make this further application.

3. The reason for the application is that the applicants desire to challenge my decision on appeal and the application raises an important question of principle, namely whether a judge can be compelled to supply copies of his notes for this purpose. Where oral evidence has been given which was not recorded by a shorthand-writer I have no doubt that the judge can be compelled to supply copies of his notes of it. Under o.68 r.1 a judge has power to direct that the evidence of witnesses shall not be recorded in shorthand. It is then his duty to make a note of the evidence and his note is the official record of that evidence. Clearly he is bound to supply copies of that note. There is at 51 Digest (1967 Ed.) 818 (3739) reference to a Practice Note said to be contained in The Times of 27th May 1932. We do not have that issue available. There is a microfilm copy of it which I have tried to examine but the projector with which it has to be viewed is so unsatisfactory that even after searching for three quanters of an hour I cannot be certain whether the Note is there or not: all I can say is that I have been unable to find it. Lord Hanworth, M.R. is reported in the Digest as saying:

"It has been the tradition of judges in a court of first instance during a long course of time to take such notes as they deem necessary to enable the case to be laid properly and sufficiently before the higher court. To break that tradition would be a serious inroad on the rights of suitors who desire their cases to be reheard before the higher tribunal. Without such assistance the Court of Appeal and the suitors would be placed at a disadvantage. I desire to reaffirm the duty of the judges of first instance to conform with this tradition and practice".

In what connection this direction was given does not appear but it clearly requires a note of evidence. However, I did not think that it was necessary to have a note of the argument in the case before me to enable it to be laid properly and sufficiently before the higher court and I still cannot see that it is necessary. No oral evidence was taken and the matter was decided solely upon affidavits. As I understand it, a judge is under no obligation to make a note of any kind save where oral evidence is taken and there is no shorthand-writer. He may take a note if he sees fit, for his own personal use, but it need not be complete and it may contain matter which consists of his own thoughts upon the argument and which is not merely a record of the proceedings. He may make such notes in any form he chooses and this may render them incomprehensible or even misleading to anybody else. My own notes, save where they are the official record of oral evidence, are invariably written in shorthand and contain comments on the argument and on the evidence which it may not be appropriate for the parties to see. I have always understood the law to be that save in the one case I have mentioned a judge is no more compellable to produce his notes than are counsel, solicitors or other persons who may make notes of the proceedings for their private use. Indeed, it has been said that a judge's notes are "privileged" but it is unnecessary here to consider the nature and extent of any such privilege.

4. The application has been made in Form No. PF 115 of the Practice Forms. The heading to that form refers to 0.58. I will assume this is not a mistake which has crept in by reason of the renumbering of the old 0.58 as 0.59 in the 1967 Rules, although 0.58 deals with appeals from the Registrar, from referees and from judges in chambers and makes no mention of notes. Under the old 0.58 the Court of Appeal in England refused to proceed with appeals until the judge's notes of evidence were produced: see, for example, Lewis v. Cory⁽¹⁾. Mr. Wong has based his application upon the requirements of o.59 r.9, which specifies the documents to be lodged by an appellant to the Full Court where the appeal is not one "for which other provision is made by these rules": see o.59 r.1. Since provision for appeals from a judge in chambers is made otherwise (in o.58) it seems to me that o.59 r.9 has no application here. In any event there is nothing in the rule which requires the filing of a judge's note of argument. Paragraph (f) requires a transcript of the official shorthand note of the judgment or order or, in the absence of such a note, "the judge's note of his reasons for giving the judgment or making the order". As is customary in chambers I made at the time no note of my reasons for making the order I did. I am, however, quite prepared to supply a note of my reasons and it has always been my practice to do so without being asked when an appeal has been lodged, even upon an appeal from chambers. It is not such a note I am now asked for. Paragraph (g) relates to a transcript of the official shorthand note of evidence or, in the absence of such a note, "such parts of the judge's note of evidence as are relevant to" any issue on the appeal. It is significant that this paragraph is expressly restricted to a note of the evidence. Mr. Wong refers to a note at p.754 of the Supreme Court Practice 1967, which reads:

"In non-witness cases, where no shorthand note is taken, copies of the Judge's note (if any) must be bespoken".

This, as I have said, has no application to appeals from a judge in chambers, but in any event I do not consider it to be authority for the proposition that a judge can be compelled to supply a copy of his notes of argument: the notes there referred to are probably notes of agreed facts and of judgment. Even if the intention was to refer also to notes of argument it still does not necessarily follow, because a copy may be bespoken, that the judge is compelled to supply them. I have been referred to no case, nor have I been able to find one, where a judge has been compelled to supply an appellate court with his personal notes of argument. On the contrary, there are occasions when a note of evidence made by a judge should not be placed before the appellate court. Thus in Baudains v. Liquidators of Jersey Banking Co., ex parte Baudains⁽²⁾ it was held that where a judge's notes of evidence were mere private memoranda for the assistance of his own memory and were not taken in fulfilment of a duty imposed by law or practice it would be "very improper" to have them before the appellate court.

5. It may be noted that in criminal cases in England, where statutory power was given to require production of the judge's note upon an appeal (Criminal Appeal Act 1907, section 8), this power was seldom if ever exercised and the power has been abrogated by the Criminal Justice Act 1967. The same power appears never to have been conferred in Hong Kong at all.

6. I venture to think that it would be highly detrimental to the administration of justice if judges were to be inhibited from keeping their own private notes in a manner which was not open to scrutiny and which might necessitate transcription or lead to the giving of explanations. For my part I have always resisted and shall continue to resist any attempt to obtain production of my private notes.

7. The application is dismissed.

26th February, 1969.

Representation:

(1) 1906 W.N. 95.

(2) (1888) 13 App. Cas. 832