CACV000081/2003
CACV 81/2003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 81 OF 2003
(ON APPEAL FROM LDMR NO. 38 OF 2000)
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| BETWEEN | | |
| TANG PING-CHOI | 1st Applicant |
| CHAN CHUEN | 2nd Applicant |
| | |
| AND | |
| | |
| THE SECRETARY FOR TRANSPORT | Respondent |
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Coram: Hon Rogers VP, Le Pichon and Yuen JJA in Court
Date of Hearing: 23 - 24 March 2004
Date of Handing Down Judgment: 6 April 2004
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J U D G M E N T
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Hon Rogers VP:
1. This is an appeal from a judgment of the Lands Tribunal given on 27 September 2002 and the subsequent order of 28 February 2003. The matter before the Lands Tribunal was an application for compensation in respect of land which had been resumed for the purposes of building West Rail. The appellants were the periodic tenants of pieces of land in Pat Heung, Yuen Long. Since there is no dispute as to the land in question that will simply be referred to as "the land". The land was resumed by the government on 16 January 1999 following the gazetting of a resumption notice on 16 October 1998. The appellant had sought nearly $19 million but the Tribunal ordered compensation on review in the total sum of $268,434. On this appeal the appellants sought an order that the compensation should be increased to "an amount which fully reflects the loss sustained by the Appellants as a result of the resumption" and that the costs should be provided for. At the conclusion of the hearing of this appeal this court reserved its judgment which we now give.
Background
2. The 2nd appellant, Mr Chan Chuen, gave evidence that in 1992 he had purchased some 2,500 Barbados lily bulbs and that he had propagated them on his land in Tung Chung on Lantau. However, the land in Tung Chung was resumed by government and in 1998 compensation totalling $10 million was received by the 2nd appellant and his partner there. The 2nd appellant's share was $5 million.
3. The appellants also gave evidence that they had entered an oral agreement on 1 December 1996 under which the 1st appellant would provide labour and land at Tin Sum and the 2nd appellant would provide lily bulbs. That agreement related to part of the land. There was another agreement on 1 January 1997. That related to the remaining part of the land. The 2nd appellant said that in early 1997 he transported at least 250,000 Barbados lily bulbs to the land.
4. It was also in evidence that in 1997/1998 the 2nd appellant entered similar joint ventures with no less than 14 other farmers in the same area. Each of those joint ventures was within the boundaries of land which was subsequently resumed for the purposes of the construction of West Rail. In total 22 claims for compensation as a result of resumption were made in respect of joint ventures in which the 2nd appellant had an interest. It seems that the 2nd appellant was allowed to remove some 800,000 Barbados lily bulbs, in respect of which he had apparently received compensation. It was the appellant's case that those bulbs had been sent to areas in Tin Sum, which is near Yuen Long. Apparently those bulbs, or at least some of those bulbs, may have found their way to be used in those other joint ventures.
5. Planting of the bulbs on the land commenced in 1997 and the first harvest was apparently in January 1998. In September 1998, shortly prior to the gazetting of the resumption notice in respect of the land, it became known that the basis upon which government was prepared to settle claims for compensation on an ex gratia basis was to be changed. It is said in the judgment that the new basis resulted in ex gratia payments which were approximately 1/12 of the amount that they would have been had they been calculated on the previous basis. This, of course, had no bearing on the amount of compensation that would be awarded by the Lands Tribunal on a contested application. The basis of compensation to be awarded by the Lands Tribunal remained the same. What changed was the approach of those responsible for negotiation towards the amount that the relevant body was prepared to agree on a settlement basis. Nevertheless, as will be seen, the change in approach apparently caused some consternation. Indeed, even when the appeal was argued in this court, the change in approach to settlement discussions appears to have been a ground for an unformulated complaint which Mr Mumford SC, who appeared on behalf of the appellants, referred to from time to time.
6. The compensation awarded by the Tribunal was calculated as $27,417 for loss of leasehold interest, $16,532 in respect of loss of profits (from the first harvest) and $224,485 in respect of loss of stock. It is in relation to this latter item that the arguments on this appeal ranged. In so saying, it has to be observed that despite constant reminders by this court that section 11(2) of the Lands Tribunal Ordinance, Cap. 17, provides that an appeal to this court could only be on the basis that the determination or order was erroneous in point of law, arguments which were clearly directed to issues of fact were constantly raised.
7. Mr Mumford's argument was founded in large part upon the proposition that the Tribunal should not have accepted the evidence from the expert witnesses called on behalf of the respondent namely Mr Cheng and Mr Hong and had wrongly rejected the evidence of Mr Ho. The discernible point of law which was raised was on the footing that the respondent's expert witnesses, in particular Mr Cheng, had so conducted themselves that the court should not have permitted their evidence at all.
Whether the expert witnesses evidence should have been excluded.
8. The issue in relation to the respondent's witnesses arose because in the initial round of witness statements, the 2nd appellant and a Mr Wong Chau Kwong had both stated that an agreement had been reached between the 2nd appellant and Mr Wong that Mr Wong would arrange for the wholesale sale of the appellants' Barbados lily flowers at an average price of $16.50 per flower and that the appellants would receive 90 percent of the sale proceeds. Mr Wong's firm, Bloom Garden, was to receive the remaining 10 percent of the sale proceeds as its commission. Details of various sales said to have been conducted were given in the respective witness statements. In particular it was said that in October 1998, 300 Barbados lily cut flowers were sold through Bloom Garden at an average price of $16.50 each and that Bloom Garden paid the 2nd appellant the sum of $4,455.
9. In an attempt to test the veracity of this evidence, Mr Cheng and a colleague, Mr Ko, paid 4 visits to Mr Wong at his home, which seems to have doubled as the office of Bloom Garden, in Flower Market Road, Mongkok. In May 1999 they paid a visit in order, as was said, to "survey the market value of Barbados Lilies". In December of the same year they paid a second visit and placed an order for 500 Barbados lily bulbs. A few days later they paid a third visit and took delivery of the bulbs that had been ordered. The matter in respect of which the major complaint arose took place in September 2000. On that occasion, when Mr Cheng and Mr Ko visited Mr Wong at his home they had a tape recorder with them. They recorded the conversation they had with Mr Wong without telling him that they were doing so. Then just before the first hearing of the case in the Tribunal the tape recording was disclosed to the appellants. The conversation revealed on the tape recording was highly damaging to the appellants' case that the flowers were indeed worth $16.50. Moreover, there is a passage in that recording in which it would appear that Mr Wong, himself, brought up the subject of land resumption claims. He indicated, of his own suggestion, that a price of $16.50 could be agreed on paper for the purposes of land resumption, but that that should not be taken as being a price which he would be prepared to pay.
10. Be that as it may, Mr Mumford's objection to Mr Cheng's evidence and to any evidence based upon it was that in the first place Mr Cheng, and therefore Mr Hong as well, were not independent of the respondent since they were employees of Chesterton Petty, who were engaged as the respondent's consultants for the purposes of the resumption of land for West Rail. In the second place it was said that because they had indulged in what was private detective work they had demonstrated that they were not impartial. Complaint was further made that not only had they told lies to Mr Wong in suggesting that they were persons engaged in the trade of growing Barbados lilies but that they had even offered him an inducement.
11. The Tribunal refused the appellants' application that Mr Cheng and Mr Hong should not be permitted to give evidence. The Tribunal considered that it would be appropriate to hear the evidence first and then decide what evidence was admissible. It considered that it would be premature to draw any inference against the proposed witnesses before hearing evidence from them. In my view, that approach to hearing the case cannot be faulted.
12. In giving judgment on the case, the Tribunal said at paragraph 7.9:
"After hearing all the Respondent's evidence we did not find that there was any unduly close relationship between the Respondent's two experts and the Respondent. However we find that it is beyond the scope of expert duty for Mr Cheng to do the private detective work and to make comments on the witness statements of Wong Chau Kwong, Chan Kwong Man and Chan Chuen. We have therefore attached no weight whatsoever to such comments and to the contents of the taped conversation made on 7th September 2000. Although he told lies to Wong Chau Kwong during the conversation, we held the view that having regard to the contents of his supplementary report (dated 21st February 2001), such lies would have no effect on those parts of this supplementary report and his report dated 21st November 2000."
13. The argument put forward in respect of the first part of the objection was that because of Mr Cheng's employment by a consultant firm, he should be treated as if he were an employee of the respondent and, as such, he should not be permitted to give evidence as an expert.
14. There is no doubt that Mr Cheng was employed by Chesterton Petty. The question then arises as to whether a consultant, or for that matter an employee of a consultant, which has acted as a consultant should not be permitted to be an expert witness in an action to which the entity to whom the consultant had given advice as a consultant is a party. I see no basis for any such suggestion. If there were to be such an exclusion, experts would be put in an impossible situation. They would be hampered as to what they could do in any situation where litigation might ensue. Looking at it from the other way, they could not give advice to anybody who was considering engaging their services in litigation. Even more seriously, once engaged as an expert for litigation they could not give the engaging party any advice.
15. But the question also arises as to whether there is an absolute bar to the admissibility of evidence as expert evidence, on the footing that a consultant or an employee of a consultant were to be treated as an employee of the engaging party. In my view, on general principles, there cannot be such a bar. An expert is called to give evidence within his expertise either for example to explain technical matters or to give opinion evidence based on his experience. Naturally, that evidence should not be biased and the content of the evidence should not, in any way, be influenced by the outcome of the litigation. But in countless instances expert witnesses have been employees of the party calling them. In some cases it was almost inevitable that that had to be so because the technical or other matters in respect of which the expert was giving evidence was very highly specialised.
16. For his proposition that the law amounted to a virtual total exclusion of expert evidence from employees of a party, Mr Mumford relied, in particular, on what Evans-Lombe J had said in Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg [2001] 1 WLR 2337. That was a highly unusual judgment since it was given in respect of a case that had already been settled. It can therefore be observed that Evans-Lombe J's judgment was not subject to an appeal. No doubt the judge held strong views on the matter which caused him to expound his opinion of the law. That was that if a reasonable observer might think that the relationship between the expert witness and the party calling him was capable of affecting the views of the expert, his evidence should not be admitted however unbiased the conclusions might be. Despite the judge's apparently strongly held views on the matter, I consider that the Court of Appeal in Regina (Factortame Ltd and others) v Secretary of State for Transport, Local Government and the Regions (No 8) [2002] 3 WLR 1104 was correct in saying that that was to apply the wrong test. I would agree with Lord Phillips MR when he said at paragraph 70, after citing the relevant passage from Evans-Lombe J's judgment:
"...We do not believe this approach is correct. It would inevitably exclude an employee from giving expert evidence on behalf of his employer. Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence."
17. In this case the witnesses concerned were not employees of the respondent but were employees of the respondent's consultants. In those circumstances, I consider that there is even less cause for concern. Such concern as there might be would stem from the fact that the consultants might wish to justify previous advice given. In the second place many of the problems which have arisen with regard to expert evidence have been caused by the fact that the witnesses have not been frank with the court. In some cases they have given evidence which is half truthful, keeping back knowledge which they knew as experts and which was relevant to the matter in respect of which they were giving evidence. In some instances they have introduced irrelevant matters in what might be regarded as an attempt to obfuscate the real issues. Neither of these situations exists in this case.
18. Nor is this a case where the Tribunal has allowed its function to be usurped by the experts. Many of the difficulties which have arisen in the past have stemmed from the fact that the courts in permitting evidence to be given under the aegis of section 58 of the Evidence Ordinance, Cap.8, have, in effect, allowed the decision in the case to be made by the expert. Section 58 permits experts to give evidence of any "relevant" matter, which is defined as including an issue in the proceedings. It would seem that losing sight of the limitation in Section 58(2):
"(2) Where a person is called as a witness in any civil proceedings a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived."
may, perhaps, have been one cause of problems which have arisen. Courts should never treat a expert witness's evidence in such a way that effectively allows the witness to take over the function of deciding an issue in the case. Again that is not the case here.
19. The fact that Mr Cheng might have derived income directly or indirectly from carrying out his function of giving evidence is irrelevant. Expert witnesses are usually paid. If they were not paid they would be hardly likely to give up their valuable time in the preparation and giving of evidence. The reality of the situation in this regard is as put by Laddie J in Cala Homes (South) Ltd and Others v Alfred McAlpine Homes East Ltd [1995] FSR 818 where he said at page 843 that the court would obviously be aware that a party is likely to choose as its expert someone who holds views that are most sympathetic to its position. Put in another way, it can hardly be supposed that a party will call an expert to give evidence which contradicts its own case.
20. It has to be observed that in this case Mr Cheng was giving both factual evidence and evidence as an expert. For example he gave evidence as to the state of the land and the fact that it would seem that planting of bulbs went on for a very long time; quite possibly it took place after the resumption notice had been gazetted. On this aspect it might be added that, it was said in a speech on 21 September 1997 by the then Financial Secretary, on the occasion of the 1997 World Bank Group/International Monetary Fund Annual Meeting in Hong Kong, that the Government had given the green light to the KCRC to continue its planning for the first phase of West Rail in December 1996. There is thus reason to suppose that much, if not all, of the bulb farming activities with which the 2nd appellant was concerned in the Yuen Long area took place in circumstance when the areas chosen for such farming were likely to be the subject of resumption for West Rail. Whether or not that was the 2nd appellant's expectation is, of course, a matter of conjecture. Mr Cheng also gave evidence based on his experience in agriculture.
21. In this case, it seems to me that the Tribunal took a sensible and very realistic approach. It ignored any evidence that might have been considered to be tainted by the witnesses having conducted themselves as private investigators. It admitted the evidence with the correct degree of caution and, in my view, that was justified. But the objection that Mr Cheng told lies to Mr Wong, amounts to no more than he acted as a private investigator posing as a customer. The allegation that an inducement was offered is quite simply to take a very distorted view of what took place. The inducement consisted of no more than a purchase of items at what Mr Wong was prepared to sell them. It was not linked in any way to the giving of evidence, still less the giving of false evidence.
22. I would add, that whilst confirming the Tribunal's approach in ignoring the evidence which related to the investigation, in no way should it be considered that an investigation was not merited. Clearly, in the circumstances of this case Mr Wong's evidence and the veracity of the documents emanating from Bloom Garden called out for scrutiny. Such scrutiny and any investigation should have been carried out by others.
The exclusion of Mr Wong's evidence
23. Complaint was made that the Tribunal excluded consideration of Mr Wong's witness statement altogether. It was said that this was unfair because Mr Cheng's evidence relating to his visits to Bloom Garden and his discussion with Mr Wong was only available to the appellants and to the Tribunal just before the first hearing. It was said that the transcript was supplied at such a late stage that the Tribunal would have been prejudiced by it without the appellants having an opportunity to object to it. It was then said that once the contents of the tape recording had been disclosed to Mr Wong he refused to take any further part in the proceedings. Further, complaint was made that although this was raised before the Tribunal on a review application, the Tribunal did not consider the evidence which had been prepared by the appellants because it erroneously considered that the application to admit this evidence had not been pursued.
24. Obviously, it was open to the Tribunal to disregard Mr Wong's witness statement altogether if he was not made available at the hearing. That was a matter for the Tribunal itself. The complaint that the tape recording of the conversation with Mr Wong had somehow caused Mr Wong not to take any further part in the proceedings is a matter which, in itself, is a dubious ground of complaint. But in any event, this court was shown the affirmation which the appellants contend was properly before the Tribunal on the review application. That affirmation establishes nothing more than the fact that Mr Wong had been telephoned on an unspecified number of occasions but that no one had answered the telephone. That establishes nothing. It does not establish that Mr Wong was refusing to answer the telephone. Still less does it establish that he was refusing to take telephone calls e.g. refusing to allow an assistant or other person to pass a telephone call to him. Although it is said that the 2nd appellant went to Bloom Garden in an attempt to contact Mr Wong, there is nothing to indicate that the failure to find Mr Wong was due to a deliberate act of avoidance by Mr Wong. There is no suggestion that there was any attempt to subpoena Mr Wong. I have no hesitation in saying that even if the Tribunal had fully considered the evidence which the appellants say was before it there was no ground for the Tribunal to reverse its previous decision to disregard Mr Wong's statement.
The evidence of Mr Ho
25. Complaint was made by Mr Mumford that the appellants' expert Mr Ho was held not to be a credible witness. It was said that the Tribunal had been biased against the appellants in favouring the respondent's witnesses and in not accepting Mr Ho's evidence. Having considered the points taken by Mr Mumford and the judgment of the Tribunal, it can only be said that the Tribunal's conclusion was not a matter for complaint but was a result of a careful consideration of the evidence and the facts. The Tribunal came to the conclusion that Mr Ho's evidence that the planting and spacing distance of the Barbados lilies on the land was proper and in good order could not be accepted because the density of planting was too great. Mr Ho had also said in his evidence that the maximum planting density for the bulbs could be 100 bulbs per square metre. Mr Cheng had reported that many of the bulbs had been planted in density as high as 104.24 bulbs per square metre and were squeezed together or overlapped one another in the soil.
26. The Tribunal took into consideration 2 text books, one Chinese and one American, which indicated that a much lower density was appropriate. For example the Chinese book gave a density which was approximately 26 bulbs per square metre whereas the American book recommended an even greater spacing for Dutch hybrid Barbados lily bulbs. The Tribunal also took into account the inference which it was prepared to draw that the 2nd appellant's farming activities in relation to Barbados lilies was driven by an intention to gain compensation on the resumption of the land. Given the facts in relation to the commencement of the 2nd appellant's farming activities and the location thereof, that inference was a fair inference to be drawn. The Tribunal was also justified in observing that the 2nd appellant's complaint in relation to the change of ex gratia payment terms demonstrated that the intention had been to obtain compensation on the basis of the number of bulbs rather than on the basis of the plants which had been produced. It might also be observed that no accounts of any sales, which the appellants had suggested had amounted to more than $400,000, were ever prepared. Mr Mumford's answer that the appellants had been taken by surprise by the change of the basis of the calculation of the ex gratia payments undermines any suggestion that the appellants' farming activities were intended to be anything other than short term, directed to gaining compensation from resumption as opposed to profit from sales.
27. Coupled with those factors, the Tribunal also took into consideration its own calculation of what it considered would be appropriate planting distances and densities. In all this, the Tribunal came to the conclusion that Mr Ho's evidence was not to be relied upon. In my view, the Tribunal's conclusion was unassailable. Furthermore, it was a question of fact and not law. The attempt to say that it amounted to an error of law because it was so obviously wrong is entirely without merit.
The exclusion of medium and small sized bulbs from the calculation.
28. Mr Mumford took the further point that the Tribunal had not given compensation in respect of small and medium-sized bulbs. In his terms they had been simply bulldozed into the ground. If there were an item of loss that the Tribunal had not taken into consideration and given compensation in respect of, that could be said to be a matter of law. That, however, is not the case. The starting point for this consideration is that compensation is given as at the date of resumption for loss incurred as a result of the resumption. That date was 16 January 1999.
29. There is no dispute that, on the 16 January 1999, there was on the land 164,766 (or thereabouts) extra large, large and medium-sized bulbs. The Tribunal assessed the value of those at $3.00 per bulb but made a 50 percent discount on the basis that a wholesale discount would be applied to that quantity of bulbs and then applied a further discount for accelerated payment, which was said to be 8 percent. The ultimate figure at which the Tribunal arrived worked out at $1.36 per bulb. As Mr Miu, on behalf of the respondent, pointed out in the course of submissions there was evidence before the Tribunal of the purchase of five bags of bulbs from Chan Ho Farm. That evidence was contained in Mr Cheng's second witness statement. The first point to note is that the ratio of large to medium and small bulbs which were contained in those bags was very much the same as the distribution of the bulbs that were on the land. Mr Miu pointed out that the bulbs purchased from Chan Ho Farm would work out at $1.18, if consideration of these small bulbs were excluded, and $0.51, if consideration of small bulbs were included. Thus by taking the higher figure of $3.00 per bulb and calculating it in relation only to the extra large, large and medium-sized bulbs and then applying the discounts the Tribunal still had arrived at a figure which not only compensated for the small bulbs, which were inevitably included with the larger sized bulbs, but the calculations arrived at a figure that was in all events reasonable.
30. When the matter was taken on review to the Tribunal, reference was made to a market survey that was conducted by the Agriculture, Fisheries and Conservation Department over the period of November 1997 to June 1998. The report of the survey indicates that it was done in order to collect the present prevailing wholesale market prices for Barbados lilies. That showed a variation in prices for the bulbs which ranged from $1.25 to $4.25 per bulb. The Tribunal said, at paragraph 47 of the judgment on review, that this supported the adopted unit rate of $3.00 per bulb. By that I do not understand that the Tribunal was saying the result of the survey was the basis for the original calculation, rather it provided some sort of cross check.
31. The only matter which causes some concern is the fact that the Tribunal appears to have considered that the discount of 8 percent for 1 year 3 months should have been applied because the sale of bulbs was to be made after the second harvest. This would not accord with the view expressed above that the calculation of the loss should be made at the date of resumption. The difference deducted by the Tribunal in this respect amounted to $22,664. That is not an insignificant sum, but given the figures which this court has been shown in respect of the purchase of the bulbs from Chan Ho Farm and given the fact that the calculation of the value of the bulbs on the land as of 16 January 1999 was to a certain extent very rough and ready first of all because the evidence as to the value of the bulbs was scant, as referred to by the Tribunal itself, and secondly because some discount had to be applied in respect of the quantities involved, which again is a matter of guesswork, I would not be disposed to vary the judgment on these grounds because the ultimate figure arrived at seems to me to have been fair and reasonable.
Whether the bulbs were Dutch hybrid or Chinese variety.
32. Mr Mumford attempted, in a number of ways, to argue that the Tribunal's conclusion that the bulbs on the land were of the Chinese variety and not of the far more expensive Dutch variety was in error. If there were any error in this respect it was an error as to the conclusion of fact and not an error in law. In any event I am very far from convinced that there are grounds for suggesting that the Tribunal was in error. I consider that on the evidence before it the conclusion to which it came was correct. The various attempts to persuade this court to consider the photographs and try to analyse unsatisfactory printouts from overseas web sites was not only doomed to failure because of the nature of the appeal which was open to the appellants but, in any event, would have failed, even if it were open to this court to consider an appeal on the facts.
Conclusion
33. In my view, this appeal should be dismissed. I would make an order of costs nisi in favour of the respondent.
Hon Le Pichon JA:
34. I have had the advantage of reading in draft the judgments of Rogers VP and Yuen JA. I agree with both judgments and have nothing to add.
Hon Yuen JA:
35. I respectfully agree with the reasons given by the learned Vice-President for the dismissal of this appeal and would only add the following observations. In my view, there were only two true points of law in the present appeal - (1) whether by reason of the periodic nature of these tenancies, the Tribunal had erred in rejecting a third harvest, and (2) whether the evidence of Mr Cheng was admissible, as he was employed by the Respondent's consultants and as he had undertaken certain activities which should have been undertaken by inquiry agents and not by a person who was likely to give evidence as an expert.
36. As to the issue of the periodic tenancies, it was held in Weco Textiles Manufacturers Ltd v Secretary for Transport [1991] HKLTLR 77, following English authority, that a periodic tenant is capable of enjoying the property for an indefinite time, having a tenancy which may be expected to continue, but which is liable to be put to an end by notice. Therefore where a property subject to a periodic tenancy is resumed, it is open to the tenant to claim compensation based on a reasonable prospect (on the date of resumption) of the continuation of his tenancy. However in the present case, it was the appellants' pleaded case (which incorporated their expert valuer's supplementary report) and it was agreed before the Tribunal that the residual terms of the various lots were 533 days and 502 days respectively. It was therefore no longer open to the appellants to argue that compensation should be payable for a third harvest on the basis of an expectancy of the continuation of the tenancies beyond the 533 days and 502 days respectively.
37. As to the issue of the expert witness, it is clear in my view that although an expert witness may be employed by a party to the litigation and/or may have undertaken activities which are inappropriate to his position, it is not the case that the entirety of his evidence is "tainted" thereby rendering it automatically inadmissible. In Goldberg, Evans-Lombe J applied a test of apparent bias, i.e. if there exists a relationship between the expert and a party which a reasonable observer might think was capable of affecting that expert's views, his evidence should not be admitted however unbiased his conclusions (paragraph 13). In Factortame, Lord Phillips MR held that the test of apparent bias applied only to the court and should not be extended to an expert witness (paragraph 70). It is for the court in each case to consider whether to permit the expert to give evidence, and if so, what weight to give to his evidence.
38. Having said that, it is important for legal advisers and experts to bear in mind that investigations of the type undertaken in the present appeal should not have been undertaken by the expert. An expert witness's primary duty is to assist the court. The more an expert witness allows himself to be involved in disputes of primary fact unrelated to his expertise, the more exposed the expert will become to allegations which may impact on his evidence - even on his area of expertise - and the less confidence the court will repose in him. This is detrimental to the administration of justice, as the court may thereby be deprived of reliance on specialist scientific or technical information which may be valuable to the proper determination of the issues between the parties.
| (Anthony Rogers) | (Doreen Le Pichon) | (Maria Yuen) |
| Vice-President | Justice of Appeal | Justice of Appeal |
Representation:
Mr Christopher Mumford, SC and Mr Jeremy Cheung, instructed by Messrs Chan & Tsu, for the 1st and 2nd Applicants/Appellants
Mr Nelson Miu, instructed by Department of Justice, for the Respondent/Respondent