It is an ancient common jurisprudence regulation that on a topic necessitating particular cognition and competency, grounds is admissible from informants who have acquired the necessary expertness on that affair, and such informants are known as “ experts ” .[ 1 ]The foundation of the usage of adept informant in tribunal was laid down by Lord Mansfield in Folkes v. Chadd[ 2 ]that “ the sentiment of scientific work forces upon proved facts may be given within their ain scientific discipline. ” Although sentiment grounds is inadmissible as a general regulation, the chief exclusion to this regulation is the sentiment of an expert on affairs resting within his expertness, and this exclusion applies in both civil and condemnable instances. Sing the civil proceedings, the statutory acknowledgment of the exclusion is reflected by subdivision 58 ( 1 ) of the Evidence Ordinance ( Cap 8 ) that an expert ‘s sentiment is admissible “ on any relevant affair on which he is qualified to give adept grounds ” . However, there is an issue of possible struggle of involvement on the expert informant.[ 3 ]On one manus, an expert informant has a paramount responsibility to help the tribunal ; on the other manus, he is remunerated for his services by one of the parties under the adversary system, which assumed a “ more partizan function ” for them at the disbursal of nonpartisanship.[ 4 ]
This essay aims to analyze whether the aspiration of adept objectiveness is realistic in our adversary system. In the following portion, we shall discourse the job of adversarial prejudice every bit good as the responsibilities of adept informants. In portion 3, the pertinence of tribunal appointed experts in Hong Kong will be examined with mention to the inquisitorial system. In portion 4, we will research the jobs associated with the little population of possible experts in Hong Kong, followed by the tribunal ‘s power in covering with adept dissensions in portion 5. Finally, a decision will be drawn in the last portion of this paper.
The jobs associated with expert informant
It is frequently said that the chief danger of adversary expertness is “ motivational prejudice ” .[ 5 ]As adept informants are employed by one of the parties to the judicial proceeding and they would intentionally model their positions to suit their client ‘s proceedings. In fact, the job of deficiency of objectiveness in adept grounds is non a new phenomenon. Equally early as in Lord Abinger v. Ashton[ 6 ], Sir George Jessel said: “ Undoubtedly there is a natural prejudice to make something serviceable for those who employ you and adequately compensate you, ” and adept informant may even see themselves as the “ paid agents ” of their employers. The job of adversarial prejudice is besides “ widespread ” in Hong Kong.[ 7 ]As identified in the Interim Report of the Working Party on Civil Justice Reform, a major job refering adept grounds is the partiality and deficiency of independency among experts.[ 8 ]Therefore, it is suggested by Professor Gary Edmond that partiality may be “ an ineluctable characteristic of cognition production and adept sentiment ” .[ 9 ]
Another ground for deficiency of nonsubjective adept grounds is due to the job of “ adept shopping ” , which is a procedure of choosing sentiments from one expert after another, until the most favorable sentiment to the party ‘s instance is found.[ 10 ]Since the pick of experts prevarications with the parties, the adept grounds is selected on the footing that would function the best involvements of their client ‘s instances. Consequently the tribunal does non needfully obtain the most independent or nonsubjective adept grounds. The pattern of choosing the “ most favourable expert ” is so a deformation of the principle behind adept grounds every bit good as a disrepute to the disposal of justness.
2.1 The responsibilities of expert informant
Due to the concern about the failure of experts to supply an independent and nonsubjective sentiment, a developed codification of behavior has been set out in National Justice Compania Naviera SA v. Prudential Assurance Co. Ltd. ( The Ikarian Reefer )[ 11 ]to clear up the responsibilities of an adept informant. The most of import parts are the first two numbered paragraphs, which stated that: “ 1 ) Expert grounds presented to the Court should be the independent merchandise of the expert uninfluenced as to organize or content by the exigencies of judicial proceeding[ 12 ]; 2 ) An adept informant should supply independent aid to the Court by manner of nonsubjective indifferent sentiment in relation to affairs within his expertness[ 13 ]. ” The Ikarian Reefer guidelines remain a good jurisprudence in Hong Kong, and the relevant rules were set out in paragraph L1/58/7 of Hong Kong Civil Procedure 2009. The adept informant ‘s “ overruling responsibility ” to supply independent and indifferent aid to tribunal is besides reflected in Order 38, regulation 35A of the Rules of the High Court ( RHC ) every bit good as the Code of Conduct for Expert Witness in Appendix D of RHC. Further counsel is provided in Hong Kong Air Cargo Terminals Ltd. v. Commissioner of Rating and Valuation[ 14 ]that an expert besides needs to guarantee no skip of stuff facts that could deviate from his complete sentiment.
Although the adversary system may non hold provided an ideal environment for the adept informants to keep their independency and objectiveness from their clients, I believed that the announcement of codification of behavior would hold raised consciousness of the adept informants in run intoing the tribunal ‘s outlooks, so that they will be less easy manipulated by attorneies, which can be given to harness in the “ widespread ” job of expert prejudice in Hong Kong.
Apart from a codification of behavior for adept informants, some observers have recommended other ways to cut down the job of expert prejudice, and one of them is the assignment of tribunal experts with mention to the inquisitorial system. It is common for the tribunal to name experts in many Continental legal powers, such as Belgium, Germany and France. Unlike the manner to name experts under the adversarial system, the expert informants are selected and remunerated by an independent authorization, normally the tribunal instead than the parties, which may avoid the job of adversarial prejudice.[ 15 ]Take an illustration of the Gallic system of expertness, the justice would usually committee the adept informants from a list of official experts, and they will be questioned by the justice.[ 16 ]The major differentiation between the adversarial and inquisitorial system of justness is that the parties play a minimum function in turn uping grounds and they need non actively prosecute with the expert informant in tribunal, as the expert informant is infrequently cross-examined by the suspects. As the court-appointed expert has small interaction with the parties, they are more likely to give an aim and indifferent sentiment to the Court.
However, it is argued that the assignment of tribunal experts under the inquisitorial system is contrary to the rules of the adversarial system of justness. Apart from the loss of right for parties to choose their ain expert informants, there are a figure of statements that go against the inquisitorial court-appointed experts. First of wholly, the chief job is that the tribunal may put “ undue trust ” on the grounds provided by the court-appointed expert, which may take to an ultimate consequence that it would be the court-appointed expert alternatively of the justice who decides the instance.[ 17 ]This is besides highlighted by Lord Denning in In rhenium Saxton that the assignment of a tribunal expert in England is a “ rare thing ” , as “ the litigators realize that the tribunal would attach great weight to the study of a tribunal expert, and are loath to go forth the determination of the instance so much in his custodies. ”[ 18 ]
Second, it is hard to guarantee the cogency or prove the pertinence of the adept grounds in inquisitorial systems due to miss of cross-examination and engagement of more adept sentiment, which are cardinal characteristics of the adversarial system. In the absence of challenges to expert grounds, its quality and dependability is hence dubious as there is no manner to prove the rightness of the adept decision.[ 19 ]Furthermore, the exercising of tribunal ‘s power to name an expert is rare under Order 40 of RHC in Hong Kong. It is indicated in the instance of Nguyen Ho & A ; Others v. Director of Immigration[ 20 ]that the Court of Appeal has declined an invitation to name a tribunal expert.
Consequently, the inquisitorial court-appointed expert is hard to incorporate in our adversarial system, particularly the of import characteristic of cross-examination which encourages critical examination of the adept grounds is missing under the inquisitorial system.[ 21 ]It is besides of my position that the adversarial expertness may profit the fact-finder in another manner by supplying a scope of positions or readings that allows confirmation of the cogency and truth of the adept grounds in Court.
Problems with little population of possible experts
As Hong Kong is confronted with the job of parties obtaining “ hired gun ” experts,[ 22 ]the concern of expert prejudice may besides originate when the “ employer ” of the expert informant is the prosecution. This is peculiarly the instance for condemnable prosecutions, where the expert informants are normally and closely connected with the constabulary or prosecution governments. In fact, the little population of available experts in Hong Kong would render the trust on adept informants “ employed ” by the prosecution inevitable, for case, constabulary officers may be called by the prosecution as informants to give grounds in drug instances sing the mean dose of drug addictsaˆ¦etc. One may nonetheless argue that trusting on the prosecution ‘s ain officers as adept informants to supply sentiment grounds would prima facie dramatis personae a uncertainty on their independency and objectiveness in that instance. Therefore, it raises the job of whether it is possible to curtail the officers of the prosecution from giving sentiment grounds as an expert in his field to back up the prosecution ‘s instance.
In R v. Chung Chen Hsin[ 23 ]( Chung ) , a constabulary officer ballistic trajectories expert, who was perchance connected with the probe, was called by the prosecution as informant to attest for them that the unusual arm found in the suspect ‘s manus baggage was a “ piece ” . The tribunal has made some of import points sing the right of the prosecution authorization to name its ain officers as adept informants to offer sentiment grounds. It is held that there is no demand in a condemnable proceeding where the expert informant ought to be independent of the prosecution authorization, but a informant who is “ competent and decently qualified ” to supply his expertness would do.[ 24 ]Judge Stuart Moore besides challenged the judgement in R v. Kai Tai Construction Engineering Company Ltd.[ 25 ]by claiming that “ it was non a “ material abnormality ” for the prosecution to hold called a decently qualified expert from the same section responsible for that prosecution, ” and there must be “ powerful grounds ” to project a uncertainty on the expert called by the prosecution in order to warrant the refusal to let the prosecution ‘s ain officers as adept informants.[ 26 ]Furthermore, even the expert informant is so closely connected to the instance that he may be biased in favor of the prosecution, it is finally a affair remained for the jury to measure the weight to be attached to his testimony and the inquiry of admissibility is irrelevant.
The principle in Chung was reaffirmed in many recent instances, such as Tang Ping Choi & A ; Another v. Secretary for Transport[ 27 ], where the tribunal held that an expert ‘s grounds was non inadmissible simply due to the fact that he or she was an employee of one of the parties to the instance. With limited human resources in Hong Kong, the fact that many expert informants have been employed by the party naming them is about inevitable, particularly for the proficient affairs that require extremely specialised experts to offer their sentiment grounds.
Despite the possible deficiency of independency of the adept informants employed by the prosecution, it has been made clear by the Hong Kong tribunals that the adept grounds would non be excluded simply on that footing. Even though the adept informant may hold produced a colored sentiment due to his or her vested involvement in the result of the instance, it is merely relevant to the weight to be attached to that expert ‘s testimony instead than the admissibility of grounds.
With one of more adept informants giving sentiment grounds at tribunal, it is possible to hold a clang of sentiment between opposing experts. In fact, we may split the treatment into two parts: one is the function the justice if this state of affairs happens at the test ; while the other is the justice ‘s powers to restrict the extent of adept dissension before the test.
First of wholly, if there are conflicting expert ‘s sentiments during the test, the justice will necessitate to direct the jury right. It is held by the Court of Appeal in Plait[ 28 ]that the justice should non direct the jury in a manner that it is a instance of taking between their sentiment grounds. Rather, the jury should see if there is a sensible possibility that either the sentiment of the prosecution or defense mechanism expert, when taken in concurrence with all the other grounds, is right ; so the jury should continue on that footing.
For the 2nd portion, the debut of Civil Justice Reform in Hong Kong has offered the tribunals more control over the adept grounds, including steps to cut down the adept dissension before the test. The most common manner for the tribunal to contract adept dissension is to direct an adept meeting and joint study[ 29 ], where the experts of both sides will run into before the test and bespeak clearly in the joint study the ground for their dissension with each other. The way is supported by Justice Wood that experts moderate their opponent positions in the expert meeting, or even make understanding on the controversial facets of their expertness.[ 30 ]It is besides noticed that the experts have a responsibility to go to this pre-trial meeting and conclude with a proper joint study, or otherwise, the defaulting expert would hold breached paragraph 12 of the Code of Conduct for Expert Witness. Furthermore, the tribunal has an option to order the assignment of a “ individual articulation expert ” under Order 38, regulation 4A of RHC. Under this strategy, parties may jointly take the “ individual articulation expert ” , or the tribunal can choose from a list prepared by the parties or any mode as the tribunal may direct. Although the usage of individual articulation expert may let the fact-finder to hold a simpler and less-biased image over the proficient affair, it is stressed in the Woolf ‘s concluding study that the assignment of a individual articulation expert is chiefly used to cover with the job of “ inordinate and inappropriate usage of experts ” alternatively of bridging the differences of sentiment between experts.[ 31 ]
As a consequence, it is believed that the way of pre-trial adept meeting and joint study will be more utile to contract the conflicting sentiment between experts instead than the assignment of a individual articulation expert.
With increasing technological edification of issues in tribunals, it is no uncertainty that the expert informant is playing a more important function in the judicial procedure. Unlike other informants, the expert informant has an overruling responsibility to the tribunal to supply nonsubjective and indifferent sentiment grounds. An absence of independency and objectiveness on the portion of the expert informant would be damaging to the tribunal, and accordingly lead to a devaluing function of the expert informant in the tribunal proceedings. It is opined that the debut of the codification of behavior every bit good as the new regulations under the Civil Justice Reform in Hong Kong have evolved new functions for the adept informant. By puting tribunal outlooks in regard of the adept grounds, the expert informant would endeavor to run into the high criterions and adhere to their responsibilities and duties listed in the regulations.
Despite the attempt of the expert informant, I believe the conjunct attempts by all watercourses of the judicial system are besides critical to reconstruct non merely the credibleness of the function of adept informant, but besides public ‘s assurance in the disposal of justness.
M. R. Damaska, ‘Evidence Law Adrift ‘ ( New Haven & A ; London: Yale University Press, 1997 )
Mike Redmayne, ‘Expert Evidence and Criminal Justice ‘ ( OUP, Oxford 2001 )
Peter Murphy, ‘Murphy on Evidence ‘ ( 10th edn OUP, Oxford 2008 )
Simon NM Young, ‘Hong Kong Evidence Casebook ‘ ( Sweet & A ; Maxwell Asia, Hong Kong 2004 )
ARTICLES & A ; REPORTS
Charles Pugh & A ; Marcus Pilgerstorfer, ‘Expert Evidence: The Requirement of Independence ‘ ( 2008 ) Journal of Personal Injury Law 224.
Chief Justice ‘s Working Party on Civil Justice Reform, ‘Civil Justice Reform: Interim Report and Consultative Paper ‘ ( 2001 )
Gary Edmond, ‘After Objectivity: Adept Evidence and Procedural Reform ‘ 25 Sydney Law Review 131.
Gary Edmond, ‘Judicial Representations of Scientific Evidence ‘ ( 2000 ) 63 Modern Law Review 216.
J.R Spencer, ‘Court Experts and Expert Witnesses: Have We a Lesson to Learn from the Gallic? ” ( 1992 ) 45 Current Legal Problems 213.
Lord Woolf MR, ‘Access to Justice: Concluding Report to the Lord Chancellor on the Civil Justice System in England and Wales ( HMSO, London 1996 )
Peter Alldridge, ‘Forensic Science and Expert Evidence ‘ ( 1994 ) 21 Journal of Law and Society 136.
Samuel Gross, ‘Expert Evidence ‘ ( 1991 ) Wisconsin Law Review 1113.
Cliff Buddle, ‘Judge calls adept witness materialistic ‘ SCMP ( 22 March 2002 ) EDT 7.
Justice Sperling, ‘Expert Evidence: The Problem of Bias and Other Things ‘ ( 1999 ) : & lt ; hypertext transfer protocol: //www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_sperling_030999 & gt ; accessed 13 March 2011.
Justice Garry Downes AM, ‘Expert Evidence: The Value of Single or Court-Appointed Experts ‘ ( 2005 ) : & lt ; hypertext transfer protocol: //www.aat.gov.au/SpeechesPapersAndResearch/SpeechesAndPapers/Downes/pdf/ExpertEvidenceNovember2005.pdf & gt ; accessed 13 March 2011.
Michael Wilkinson, ‘Recent Developments Affecting Expert Evidence ‘ in Law Lectures for Practitioners ( 1991 ) : & lt ; hypertext transfer protocol: //sunzi.lib.hku.hk/hkjo/article.jsp? book=14 & A ; issue=140013 & gt ; accessed 13 March 2011.
Folkes v. Chadd [ 1782 ] 99 ER 589
Hong Kong Air Cargo Terminals Ltd. v. Commissioner of Rating and Valuation [ 2004 ] 2 HKLRD 702
In re Saxton [ 1962 ] 1 WLR 968
Lord Abinger v. Ashton [ 1874 ] 22 WR 582
National Justice Compania Naviera SA v. Prudential Assurance Co. Ltd. [ 1993 ] 2 Lloyd ‘s Rep. 68
Nguyen Ho & A ; Others v. Director of Immigration [ 1990 ] Civ App No 135 of 1990
Plait [ 1981 ] CrimLR 332
Polivitte Ltd. V. Commercial Union Assurance [ 1987 ] 1 Lloyd ‘s Rep. 379
R v. Chung Chen Hsin [ 1996 ] 1 HKCLR 120
R v. Kai Tai Construction Engineering Company Ltd. [ 1996 ] 2 HKCLR 26
Tang Ping Choi & A ; Another v. Secretary for Transport [ 2004 ] 2 HKLRD 284
Whitehouse v. Jordan [ 1981 ] 1 WLR 246