LLAW3102 - Evidence I Study Guide and Tutorial Questions (20-21, S1) - Topic 06

LLAW3102 – Evidence I
Study Guide and Tutorial Questions (20-21, S1) – Topic 06
THE UNIVERSITY OF HONG KONG

DEPARTMENT OF LAW
LLAW3102 – EVIDENCE I
ACADEMIC YEAR 2020-2021 (SEMESTER 1)
STUDY GUIDE
TOPIC 6 – OPINION EVIDENCE
A. Topic Learning Outcome

Students who have adequately prepared for and participated in the lecture and tutorial of this
topic will be able to understand: -
1. the differences between factual evidence and opinion evidence;
2. the common law rules against opinion evidence from factual evidence;
3. the admissibility conditions of expert opinion evidence;
4. the duties of an expert witness;
5. the factfinders’ approaches to evaluate the expert opinion evidence; and
6. the relevant procedure related to expert opinion evidence.
B. Tutorial
The tutorial questions of this course serve as ‘checkpoints’ for students to facilitate their self-
assessments of:- (i) how well they understand the fundamental concepts of individual topics; and
(ii) how they can apply the theories learned to resolve hypothetical fact-pattern questions.
Most (if not all) questions in the final examination will also be hypothetical fact-pattern questions.
Before attending the tutorial session, please read the tutorial questions for Topic 6 and prepare
brief answers to each of the tutorial questions. You will be asked to discuss your answers with
your classmates and course tutor.
Created and edited by J.C.K. Yeung Page 1 of 38

Department of Law of the University of Hong Kong
Version: September 2020
C. Essential Readings for Topic 6
Cases
 HKSAR v Un Mark William (Ruling on Admissibility of Expert Evidence) (Unrep., HCCC 10/2015,
21st January 2016)
 HKSAR v Hui Chi Wai & Ors (Unrep., CACC 78 of 1999, 20th July 2001)
 R v Turner [1975] QB 834
 HKSAR v Yiu Wing Construction Company Ltd (Unrep., HCMA 1201 of 1998, 15th April 1999)
 Wang Din Shin v Nina Wang (Unrep. HCAP 8/1999, 21st November 2002)
 HKSAR v Ho Chung Yi Henry & Ors (Unrep. KCS 4906, 4907, 4908, 4909, 4910 and 4911 of 2013,
9th April 2014)
 HKSAR v Tsang Chiu Tik & Anor [1999] 3 HKLRD 301
 HKSAR v Leighton Contractors (Asia) Ltd (Unrep., HCMA 508/2015, 5th April 2016)
 HKSAR v Chow Wun Shing (Unrep. HCMA 1187 of 1998, 1st April 1999)
 R v Chung Chen Hsin [1996] 1 HKCLR 120
 R v Harris [2006] 1 Cr App R 5
 R v B(T) [2006] 2 Cr App R 3.
 HKSAR v Chan Yiu Shing & Ors [2018] HKCFI 312
 HKSAR v Lo Chun Siu (Unrep., CACC 90/2013, 6th June 2014)
 HKSAR v Kissel [2014] 1 HKLRD 460

D. Optional Further Readings for Topic 6
Textbooks
 S.N.M. Young, Hong Kong Evidence Casebook (Hong Kong: Sweet & Maxwell Asia, 2004),
Chapter 8;
 I.H. Dennis, The Law of Evidence, (London: Sweet & Maxwell, 2017), 6th edn, Chapter 20.
Statutory Provisions
 Criminal Procedure Ordinance (Cap. 221), s65DA.

 Evidence Ordinance (Cap. 8), s58.
 Rules of the High Court (Cap. 4A), O38 rr 4, 4A, 35A, 36, 37, 37A, 37B, 37C, 38, 39, 41, 42, 43,
44, Appendix D
 Rules of the District Court (Cap. 336H), O38 rr 4, 4A, 35A, 36, 37, 37A, 37B, 37C, 38, 39, 41, 42,
43, 44, Appendix E
Cases
 Barings plc v Coopers & Lybrand [2001] PNLR 551

 R v Bonython (1984) 38 SASR 45
 Yiu Wing Construction Company Limited v HKSAR (Unrep. FAMC 15/1999, 25th June 1999)
 Maysun Engineering Co Ltd v International Education and Academic Exchanges Foundation Co
Ltd t/a Hong Kong Institute of Technology (Unrep., DCCJ 27/2006, 22nd September 2010)
 National Justice Compania Naviera SA v Prudential Assurance Co. Ltd (The Ikarian Reefer)
(No.1) [1993] FSR 563
Others
 Code of Practice for Expert Witnesses Engaged by the Prosecuting Authority

 Prosecution Code of the Department of Justice, Chapter 20
 Practice Direction 5.2 – Case Management (Paragraph 20 only)
 Practice Direction 9.3 - Criminal Proceedings in the Court of First Instance

6.1 – The General Ban on Opinion Evidence
To understand this topic well, it is necessary for students to distinguish ‘evidence of opinion’ from
‘evidence of facts’.
Generally speaking, witnesses are only allowed by the common law to give evidence of facts which
are within their personal knowledge. 1 There are exclusionary rules against hearsay evidence to
exclude factual evidence beyond the witnesses’ knowledge. 2
In addition, witnesses are prohibited from giving their opinions as to how the event or incident
concerned happened and/or how they think about the event or incident concerned. 3 They are not
allowed to:- (i) draw inferences from the factual evidence given; (ii) make speculations based on their
factual testimony; and/or (iii) impose any value judgments on the incident/event concerned or
persons involved in the incident/event concerned. 4
To test your ability to distinguish ‘evidence of opinion’ from ‘evidence of facts’, consider the following
example: -
Example 6.1 – Statement of Facts vs Statement of Opinion

An eyewitness to the traffic accident gives evidence in court with the following statements: -
Statement A – “I saw the car approaching. It was from the right side of the road.”
Statement B – “The car was at high speed shortly before the collision.”
Statement C – “I heard from my neighbour that the driver used to be a taxi driver.”
Statement D – “Taxi drivers often ignore traffic rules. That’s why the accident happened.”
In this example: -
Statement A is a statement of fact within the knowledge of the witness.
Statement B is an interpretation of or opinion about the observed facts, which is a statement of opinion.
Statement C is a statement of fact beyond the knowledge of the witness.
Statement D is an inference drawn from facts. This is a statement of opinion.
Reasons for the prohibition against opinion evidence from factual witnesses
There are various reasons for the need of imposing a general prohibition against opinion evidence
from a factual witness: -
 Opinion from factual witness is unnecessary – a witness is called to the witness box simply
because he/she has the knowledge of some material facts which are in dispute among the parties
to the proceedings. A witness of facts has to tell the factual information related to the facts in
dispute, which can be used by parties as evidence but nothing more than that. 5
 Opinion is irrelevant to the facts in dispute – the opinion given by the factual witness may add
nothing to whether the statement tends to increase and decrease the likelihood of the
1 I.H. Dennis, The Law of Evidence, (London: Sweet & Maxwell, 2017), 6th edn, [20-001].
2 To be dealt with in the topic of hearsay evidence of this course.
3 Dennis, (see n 1 above), [20-001].
4 Ibid.
5 Ibid.

existence/non-existence of a fact in dispute. In other words, the opinion from the factual witness
is just irrelevant to the facts in dispute.6
 Provision of opinion from a witness of fact usurps the function of the tribunal – it has been the
duty and function of the tribunal of facts to analyse evidence adduced by parties to proceedings
and to reach a decision. In the fact-finding process, the tribunal of facts are entitled to draw
inferences by itself from the factual evidence available. And it has been the duty and function of
the tribunal of law to decide whether and/or how a particular legal principle should be applied to
a particular set of facts. The provision of the opinion by a witness of facts is not just unnecessary
(as discussed in the previous point), it will also usurp the functions of the tribunal of facts and/or
the tribunal of law.7
 Confusion/distraction brought to the tribunal of facts – If the factual witness is allowed to give
evidence of his/her opinion, collateral issues may arise together with the opinion of the factual
witnesses (e.g. what was the basis of the factual witness’s opinion? Did the factual witness possess
the required qualifications to give such an opinion? How should the tribunal of facts resolve the
discrepancies between the opinion evidence of different factual witnesses?). These collateral
issues may distract or confuse the tribunal of facts further.8
Therefore, the common rule against the opinion evidence from factual witness is said to be a rule
which seeks to minimise expenses and delay of the proceedings, as well as a rule safeguarding the
procedural fairness of the proceedings.
6.2 – Exceptions to the General Ban?
Despite the general ban on the opinion evidence, there are 2 recognised exceptions where opinion
evidence may still be admissible: -
 Opinion evidence from factual witness which cannot be separated from the observed facts –
sometimes it will be inevitable for a witness of facts to separate his/her opinion (as a result of the
observation of the facts) from the observed facts.9 This is also known as the ‘lay opinion evidence’.
Dennis recognises the that all factual evidence given by a witness of facts can also be regarded as
opinion evidence in theory. Consider the following comments: -
Whenever a witness engages in the process of observing an event, storing the event in memory,
retrieving it subsequently and narrating it to a court, the witness cannot help using inference,
explanation and classification to make sense of what has been observed. These are the
fundamental elements of the social construction of all knowledge. For example, a witness is
allowed to say that she saw a white car drive across a road junction through a red traffic light.
Nothing would be gained, and much confusion would be caused, if we tried to restrict the witness
to saying that she saw a white irregularly shaped object change its position in relation to a long
thin object with a red glow at the top. For her testimony to have any meaning it is necessary for
the witness to organise her visual perceptions by reference to the relevant concepts of a car, a
road, driving and a traffic light, and to the significance of their conjunction when the light is red.
6 A. Keane and P. McKeown, The Modern Law of Evidence (Oxford: Oxford University Press, 2018) 12th edn, p584.
8 Ibid.
9 Ibid, [20-002].

This kind of interpretation and classification of observed pheonmena is, in a weak sense, all opinion
evidence.10
In Hong Kong, the followings are some examples of recognized lay opinion evidence:- 11
o Identification of persons, handwriting, physical objects;
o Age or apparent age of a person;
o The general physical and/or mental condition of a person;
o The condition of an object;
o The value of an object; and
o Speed, distance, time, weather.
 Opinion evidence from a person with special skills/knowledge outside the experience and
competence of the tribunal of fact – the tribunal of facts may have to rely on such
skills/knowledge/expertise from the witness so that inferences can be drawn from the available
factual evidence to reach a decision or to make a finding of fact. 12 The subtopic of expert opinion
evidence will be subject to further discussions in detail in subsequent parts of this Study Guide.
In the context of civil proceedings, the above common law exceptions have been codified by s58 of
the Evidence Ordinance (Cap. 8) (“EO”).
CAP 8 EVIDENCE ORDINANCE

Section 58 Admissibility of expert opinion and certain expressions of non-expert opinion
(1) Subject to any rules, where a person is called as a witness in any civil proceedings, his opinion on any
relevant matter on which he is qualified to give expert evidence shall be admissible in evidence. (Amended
65 of 1980 s. 6)
(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.
(3) In this section, relevant matter ( 有關聯的事宜 ) includes an issue in the proceedings in question.
(49 of 1973 s. 4 incorporated)[cf. 1972 c. 30 s. 3 U.K.]
6.3 – Admissibility of Expert Opinion Evidence
For the opinion evidence to be given by an intended expert witness to be admissible by the court, the
intended expert and/or his/her opinion evidence to be given shall be:- (i) relevant; (ii) necessary; and
(iii) reliable.13 These requirements are summarised by Zervos J (as he then was) in the ruling on the
admissibility of expert evidence in HKSAR v Un Mark William (Unrep., HCCC 10/2015, 21st January
2016), [10]:-
10 Ibid, [20-003].
11 S.N.M. Young, Hong Kong Evidence Casebook (Hong Kong: Sweet & Maxwell Asia, 2004), [8-005].
13 Young, (see n11 above), [8-007].

Admitting expert evidence
10. I should make a few comments about expert evidence. The key considerations for admission
of expert evidence are that the subject upon which the witness proposes to give evidence is a
relevant matter in the proceedings; the subject is a matter of art, science, learning or knowledge
which can become the subject of expertise by study; the witness is proved or admitted to be an
expert on the subject; and the subject is one upon which the court requires the assistance of an
expert.
Similar comments can be found in Barings plc v Coopers & Lybrand [2001] PNLR 551, [45], even though
it was a discussion based on the Civil Evidence Act 1972 of the UK:-
In my judgment the authorities which I have cited above establish the following propositions:
expert evidence is admissible under section 3 of the Civil Evidence Act 1972 in any case where the
Court accepts that there exists a recognised expertise governed by recognised standards and rules
of conduct capable of influencing the Court’s decision on any of the issues which it has to decide
and the witness to be called satisfies the Court that he has a sufficient familiarity with and
knowledge of the expertise in question to render his opinion potentially of value in resolving any
of those issues. Evidence meeting this test can still be excluded by the Court if the Court takes the
view that calling it will not be helpful to the Court in resolving any issue in the case justly. Such
evidence will not be helpful where the issue to be decided is one of law or is otherwise one on
which the Court is able to come to a fully informed decision without hearing such evidence.
The condition of relevance
Relevance as the admissibility condition of expert opinion evidence can be illustrated by the case of
HKSAR v Hui Chi Wai & Ors (Unrep., CACC 78 of 1999, 20th July 2001). This was an appeal related to a
murder committed by a group of youngster gang in Sau Mau Ping in 1997. 6 of the 13 defendants (D1,
D3, D4, D6, D8 and D10) were convicted of murder, 1 (D13) was convicted of manslaughter, 2 (D2 and
D9) were convicted of causing grievous bodily harm, and 4 (D5, D7, D11 and D12) were convicted of
assault occasioning actual bodily harm.14 Some of the defendants were also convicted of preventing
the lawful burial of the corpse upon guilty plea or after trial.15
At trial, counsel for D8 sought to call expert evidence from a psychologist but it was excluded by the
trial judge. This became one of the grounds of appeal. 16 In ruling the trial judge was correct in refusing
the evidence from the said psychologist because of its irrelevance to the defence case, the Court of
Appeal had the following discussions:-17
The expert evidence
124 The next ground of appeal is that the judge wrongly refused to permit the defence to call
expert evidence. In this instance, the proposed evidence was that of Dr Ho, a psychologist. The
report which Dr Ho had prepared dealt with D8's education and family background, and his special
environment. It recorded the fact that 'intimidation and bullying and violence ... are very much the
environment in which he grew up,' a suggestion made by the applicant himself in evidence; and
he recorded the applicant as having told him that he had a fear of being beaten by those stronger
than himself. This applicant also told Dr Ho about a comic serial called "The Cunning Boys", and
14 HKSAR v Hui Chi Wai & Ors (Unrep., CACC 78 of 1999, 20th July 2001), [3] – [4].
15 Ibid, [5].
16 Ibid, [124].
17 Ibid, [124] – [128].

films based on that series, the suggestion being that D8 had become desensitized to the violence
there depicted.
125 Dr Ho concluded in his report that D8 did not suffer from any intellectual deficit or
subnormality. He said that he agreed with the applicant's description of himself that he, D8, was a
follower rather than a leader. We pause to say that no one suggested in this case that this applicant
was anything other than a follower: it was evident from his role, as well as from his age relative to
that of the others in the group. The psychologist, who was in court during some of the evidence,
sought also to assess the relative strength of D8 when compared to the witness Shek. That, with
respect, was something that the jury could do for themselves, without the aid of any witness,
expert or otherwise; and it was not in any event an issue.
126 Dr Ho concluded that D8 suffered from no psychological disturbance and lacked 'motivation
for foresight' and was, as we say, a follower and not a leader.
127 The central question, said Dr Ho, was: "How is it possible for a youngster, in many ways rather
typically of those from his geographical and socio-economic background, to engage in alleged acts
that are so violent and revolting according to the usual standards of human decency?" He
proceeded to analyse that issue, by reference to the fact that bullying and violence was ever
present in D8's social world; and that the violence depicted in "'The Cunning Boys' is extreme in
both pervasiveness and its disregard for human life .... It is difficult to express a definitive opinion
on the precise effects of exposure to violence in the mass media .... In the absence of a solid family
education, one is more susceptible to accept the values embodied in 'The Cunning Boys.' The tragic
result is equation of manhood with aggression and violence." He wrote then of how, in a group,
inhibitions against violence may be loosened, and that D8 had a predisposition to follow what
others did.
128 We find it difficult to see, as no doubt did the judge, how any of this evidence was relevant to
the issue which the jury had in the case of D8 to decide, which was whether he was party to an
attack intended to cause grievous bodily harm, and whether he himself intended to cause grievous
bodily harm. That, in essence, was how the matter was left to the jury. The fact, if it is a fact, that
the comic book culture in which he found himself is a culture which has a disregard for human life,
may be an explanation, as Dr Ho suggests, for violence by youngsters - though it is not necessary
for us to comment upon, still less come to a conclusion about, that analysis. It may very well be
that bullying and violence was part and parcel of D8's life. Furthermore, it was common ground
that D8 was a follower and not a leader. But none of this was the issue for the jury. The point at
issue, accepting that he was a follower, and accepting that his group was a group of bullies acting
out their bullying culture by which they were surrounded, was whether D8 took part in the attack
which caused Ah Kai's death and, if he did, whether he intended that really serious harm be caused.
There could be no question of a defence of duress. There was no suggestion that he did not know
that the pipes could cause very serious harm; indeed, his own evidence was that he realised they
could and were going to, and that he therefore asked D6 to stop. Nothing the psychologist said
that was relevant to the issue in D8's case, was not said or could not be said by the applicant
himself. Nothing required expert evidence to assist the jury in relation to issues before them which
that they were not fully capable of assessing themselves. A perusal of D8' evidence, both in chief
and in cross-examination, shows what it is that he appreciated about the injuries caused to Ah Kai.
He knew that before the 'break' the victim was bleeding from the nose and had bruises all over his
body; he said in terms that he would not have picked up the spatula to hit if the others had been
using the pipes to hit seriously. We are of the view that the evidence of Dr Ho was correctly
excluded.

The condition of necessity
Apart from the requirement of relevance, it is also essential for the subject matter of the expert
opinion to be something which the tribunal of facts would not be able to form an opinion without the
assistance of such an expert witness possessing special knowledge and experience. Consider the
following paragraph from the ruling on the admissibility of expert evidence in HKSAR v Un Mark
William (Unrep., HCCC 10/2015, 21st January 2016), [11]:-
11. It is generally understood that expert opinion evidence may only be received on a subject
calling for expertise which the court could not be expected to possess, to a degree sufficient to
understand the evidence given in the case unaided. If the court can form its own opinion without
the assistance of an expert, the matter being within its own experience and knowledge, expert
opinion evidence is inadmissible because it is unnecessary. See R v Turner[1975] QB 834 per
Lawton LJ at 841, applied in R v Loughran [1999] Crim LR 404.
In R v Turner [1975] QB 834 (which was cited in Un Mark William (above)), the defendant was
convicted of murder. He appealed against the conviction on the ground that the trial judge refused to
admit evidence from a psychiatrist supporting his defence of provocation. 18 The English Court of
Appeal discussed the issue as follows:-19
Before this court Mr. Mildon submitted that the psychiatrist's opinion as to the defendant's
personality and mental make-up as set out in his report was relevant and admissible for three
reasons: first, because it helped to establish lack of intent; secondly, because it helped to establish
that the defendant was likely to be easily provoked; and thirdly, because it helped to show that
the defendant's account of what had happened was likely to be true. We do not find it necessary
to deal specifically with the first of these reasons. Intent was not a live issue in this case. The
evidence was tendered on the issues of provocation and credibility. The judge gave his ruling in
relation to those issues. In any event the decision which we have come to on Mr. Mildon's second
and third submissions would also apply to his first.
The first question on both these issues is whether the psychiatrist's opinion was relevant. A man's
personality and mental make-up do have a bearing upon his conduct. A quick-tempered man will
react more aggressively to an unpleasing situation than a placid one. Anyone having a florid
imagination or a tendency to exaggerate is less likely to be a reliable witness than one who is
precise and careful. These are matters of ordinary human experience. Opinions from
knowledgeable persons about a man's personality and mental make-up play a part in many human
judgments. In our judgment the psychiatrist's opinion was relevant. Relevance, however, does not
result in evidence being admissible: it is a condition precedent to admissibility. Our law excludes
evidence of many matters which in life outside the courts sensible people take into consideration
when making decisions. Two broad heads of exclusion are hearsay and opinion. As we have already
pointed out, the psychiatrist's C report contained a lot of hearsay which was inadmissible. A ruling
on this ground, however, would merely have trimmed the psychiatrist's evidence: it would not
have excluded it altogether. Was it inadmissible because of the rules relating to opinion evidence?
The foundation of these rules was laid by Lord Mansfield in Folkes v. Ckadd (1782) 3 Doug.K.B. 157
and was well laid: the opinion of scientific men upon proven facts may be given by men of science
within their own science. An expert's opinion is admissible to furnish the court with scientific
information which is likely to be outside the experience and knowledge of a judge or jury. If on the
18 R v Turner [1975] QB 834, 838C-D.

19 Ibid, 840G – 842G.
proven facts a judge or jury can form their own conclusions without help, then the opinion of an
expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make
judgment more difficult. The fact that an expert witness has impressive scientific qualifications
does not by that fact alone make his opinion on matters of human nature and behaviour within
the limits of normality any more helpful than that of the jurors themselves; but there is a danger
that they may think it does.
What, in plain English, was the psychiatrist in this case intending to say? First, that the defendant
was not showing and never had shown any evidence of mental illness, as defined by the Mental
Health Act 1959, and did not require any psychiatric treatment; secondly, that he had had a deep
emotional relationship with the girl which was likely to have caused an explosive release of blind
rage when she confessed her wantonness to him; thirdly, that after he had killed her he behaved
like someone suffering from profound grief. The first part of his opinion was within his expert
province and outside the experience of the jury but was of no relevance in the circumstances of
this case. The second and third points dealt with matters which are well within ordinary human
experience. We all know that both men and women who are deeply in love can, and sometimes
do, have outbursts of blind rage when discovering unexpected wantonness on the part of their
loved ones; the wife taken in adultery is the classical example of the application of the defence of
" provocation "; and when death or serious injury results, profound grief usually follows. Jurors do
not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness
are likely to react to the stresses and strains of life. It follows that the proposed evidence was not
admissible to establish that the defendant was likely to have been provoked. The same reasoning
applies to its suggested admissibility on the issue of credibility. The jury had to decide what reliance
they could put upon the defendant's evidence. He had to be judged as someone who was not
mentally disordered. This is what juries are empanelled to do. The law assumes they can perform
their duties properly. The jury in this case did not need, and should not have been offered, the
evidence of a psychiatrist to help them decide whether the defendant's evidence was truthful.
Mr. Mildon submitted that such help should not have been rejected by the judge because in
Lowery v. The Queen [1974} A.C. 85 the Privy Council had approved of the admission of the
evidence of a psychologist on the issue of credibility. We had to consider that case carefully before
we could decide whether it had in any way put a new interpretation upon what have long been
thought to be the rules relating to the calling of evidence on the issue of credibility, viz. that in
general evidence can be called to impugn the credibility of witnesses but not led in chief to bolster
it up. In Lowery V. The Queen evidence of a psychologist on behalf of one of two accused was
admitted to establish that his version of the facts was more probable than that put forward by the
other. In every case what is relevant and admissible depends on the issues raised in that case. In
Lowery v. The Queen the issues were unusual; and the accused to whose disadvantage the
psychologist's evidence went had in effect said before it was called that he was not the sort of man
to have committed the offence. In giving the judgment of the Board, Lord Morris of Borth-y-Gest
said, at p. 103:
" The only question now arising is whether in the special circumstances above referred to it
was open to King in defending himself to E call Professor Cox to give the evidence that he gave.
The evidence was relevant to and necessary for his case which involved negativing what
Lowery had said and put forward; in their Lordships' view in agreement with that of the Court
of Criminal Appeal the evidence was admissible."

We adjudge Lowery v. The Queen [1974] A.C. 85 to have been decided on its special facts. We do
not consider that it is an authority for the proposition that in all cases psychologists and
psychiatrists can be called to prove the probability of the accused's veracity. If any such rule was
applied in our courts, trial by psychiatrists would be likely to take the place of trial by jury and
magistrates. We do not find that prospect attractive and the law does not at present provide for
it.
Another example is HKSAR v Yiu Wing Construction Company Ltd (Unrep., HCMA 1201 of 1998, 15th
April 1999). The defendant sought to appeal against the conviction of being in control of a
construction site on which was found persons who had remained in Hong Kong without the authority
of the Director of Immigration. 20 The grounds of appeal, inter alia, touched upon:- (i) the trial
magistrate’s finding of the defence witness with insufficient qualifications and expertise to be an
expert witness on construction site security; and (ii) the magistrate’s finding that the issue of ‘whether
the defendant had taken all reasonable steps related to the construction site security’ did not involve
any knowledge outside the competence of the court.21 Citing the authority of R v Bonython (1984) 38
SASR 45, the Court of First Instance dismissed the appeal with the following discussions related to the
grounds of appeal concerned:-22
It is convenient to deal with grounds 1 and 2(a) together. During the course of its case
before the trial magistrate, the Appellant had sought to introduce the evidence of a Mr WAN as
an expert in the field of construction site security. A voire dire was held as to Mr WAN’s
qualifications and expertise in this field. The magistrate after having heard evidence in this regard
ruled that Mr WAN was not sufficiently qualified as an expert.
As to that ruling The learned magistrate also said this:-
“Having heard and considered Mr Wan’s working experience, his ranking when he left
the Hong Kong Police Force, his training and the date and the field of discipline in which
he received his training, his academic qualifications and the nature of the evidence he
purported to give in court, and also carefully considered whether his
knowledge/expertise was scientific and/or specific which was outside the knowledge
and experience of the court and if the court was able on the facts proved in this case,
to come to a conclusion whether the Appellant had taken all practicable steps to
prevent the illegal immigrants found on its construction site, I ruled against the Defence
and held that Mr Wan did not have the necessary qualifications and expertise to qualify
him as an expert witness on construction site security.”
That was said by the learned magistrate in his Statement of Findings. He then went
immediately on to say this:
“This trial was also based on facts proved and not on any scientific or special knowledge
outside the knowledge of the court on how to prevent illegal immigrants from being
on a construction site.”
Mr WONG for the Appellant complains that the magistrate was wrong in his finding that the trial
issue of construction site security was a question of fact not requiring any special knowledge on
the part of the tribunal for its proper resolution.
20 Contrary to s38A(2) of the Immigration Ordinance (Cap. 115), see < http://hklii.hk/eng/hk/legis/ord/115/s38A-
19970630.html> for the provision in force at the material time.
21 HKSAR v Yiu Wing Construction Company Ltd (Unrep., HCMA 1201 of 1998, 15th April 1999), pp1-2.
22 Ibid, pp3-7.

In R. v. Bonython (1984) 38 SASR 45. The Supreme Court of South Australia said:-
“Before admitting the opinion of a witness into evidence as expert testimony, the judge
must consider and decide two questions. The first is whether the subject matter of the
opinion falls within the class of subjects upon which expert testimony is permissible.
This first question may be divided into two parts: (a) whether the subject matter of the
opinion is such that a person without instruction or experience in the area of
knowledge or human experience would be able to form a sound judgment on the
matter without the assistance of witnesses possessing special knowledge or experience
in the area, and (b) whether the subject matter of the opinion forms part of a body of
knowledge or experience which is sufficiently organized or recognized to be accepted
as a reliable body of knowledge or experience, a special acquaintance with which by
the witness would render his opinion of assistance to the court. The second question
is whether the witness has acquired by study or experience sufficient knowledge of the
subject to render his opinion of value in resolving the issues before the court.”
So far as the first question or matter is concerned, the learned magistrate had plainly decided that
the subject matter as to construction site security involved solely questions of fact within the
competence of an ordinary person, i.e. a person without instruction or experience in the area of
construction sites security, so as for him to be able to form a sound judgment on the matter
without the assistance of the opinion of witnesses expert in the area. I must say I agree with the
finding of the magistrate.
The matters of fact at issue in the trial so far as the particular sites security was concerned
was whether the fenced perimeter of the site was properly secured in that a proper system of
management was set up to ensure that openings made in the fence for the purposes of
construction were properly guarded while there, or closed as soon as practicable and whether the
comings and goings of people through the sites gates or entrances was properly monitored and
further whether security patrols and measures were sufficient to prevent illegal immigrants
entering the site with workers and sufficient to subsequently detect them if they did.
These are all matters of pragmatic fact. There is no special knowledge or question of
science involved. It may well be that the site was very large, it being some 29,000 sq. meters or
so, but that is a question of scale only and does not alter the underlying principles by which a
tribunal would deal with the questions of fact involved.
The magistrate was right in holding that the questions before him were questions of fact
within his competence and not requiring any special expertise to resolve.
The magistrate having found that, there was really no reason for him to examine the
question of the expertise of Mr WAN. In this regard, the learned magistrate seems to have dealt
with two separate issues, i.e. firstly, whether the area of evidence in issue requires expert evidence
for its resolution and secondly, as to whether Mr WAN was sufficiently qualified as an expert as
being one issue.
The proper course would have been to firstly and separately decide whether the matters
in issue were amenable to expert evidence or not.
If not, as the magistrate found, then there was no need to consider the question of
whether witnesses were sufficiently qualified. That question would only arise in the event the
court had decided that the matters in issue were amenable to expert evidence.

Accordingly given his finding that the issues before him were questions of fact not
requiring expertise for their resolution, in considering whether Mr WAN was an expert, the
magistrate had embarked upon a completely unnecessary course.
Whilst an irregularity, however, this was not a material irregularity as the end result was
that no expert evidence was given and at the end of the day the magistrate determined the issues
in the case as simple matters of fact as he was entitled to do.
I might add in any event that in my view the magistrates decision that, even if the subject
matter of the construction site security was amenable to expert evidence, Mr WAN was
insufficiently qualified cannot be criticised. From his Statement of Findings he had considered both
Mr WANs academic qualifications and his experience in arriving at his decision. It is also apparent
from the content of his ruling given in this regard during the course of trial that he had considered
both the experience and academic qualifications of Mr WAN in arriving at his finding albeit the
terms of his ruling could perhaps have been better worded in that they at the end of the day
referred only to the academic qualifications of Mr WAN.
Nevertheless for the reasons I have already given, the magistrate resolved the matters of
fact, as he was entitled to do, in a proper way without any assistance from Mr WAN, that assistance
he having already found was not required. That is enough to dispose of Ground 1 and Ground 2(a).
The defendant sought to appeal to the Court of Final Appeal after the Court of First Instance dismissed
the appeal. Leave to appeal was refused by the Appeal Committee of the Court of Final Appeal. 23
Below are some examples which expert evidence is commonly accepted in Hong Kong:-
 Medical diagnosis/prognosis/accepted medical practice/treatment;

 Composition of relevant compounds in dangerous drugs cases;
 Fingerprint, DNA analysis, Blood type analysis;
 Foreign law;24
 Engineering and scientific matters; and
 Triad ritual, structure and practices.
The condition of reliability
Note to students 6.1 - Students should not be confused by the term ‘reliability’ here in the context of
admissibility condition of expert evidence (to be decided by the tribunal of law), and the issue of reliability
for a piece of evidence (to be decided by the tribunal of facts when evaluating the quality of the evidence).
The focus of this section of the Study Guide is the former.
After the tribunal of law has made a ruling to ‘rule in’ the expert opinion evidence, the tribunal of facts can
certainly decide how much weight should be attached to the expert opinion evidence and/or to determine
the reliability of the opinion evidence by say taking the methodology adopted by the expert opinion witness
into account.
23 Yiu Wing Construction Company Limited v HKSAR (Unrep. FAMC 15/1999, 25th June 1999).
24 In civil proceedings, it is governed by s59 of the Evidence Ordinance (Cap. 8).
It is suggested that the condition of reliability can be related to 2 separate issues, namely the reliability
of the science/field of expertise, and the qualification of the expert to give opinion evidence in the
particular field of expertise.25
 Reliability of the science/field of expertise - According to Young, this is not always a concern.
However, when the expert opinion evidence involves ‘application of a “novel science” or an
established science applied in a “novel manner”,26 issues may arise on this even if the court is
satisfied that:- (i) the opinion evidence to be adduced by the intended expert is relevant to the
fact(s) in issue; and (ii) the opinion evidence is related to the subject and/or expertise which the
court cannot be expected possess.
There are 2 cases which illustrate the approach in Hong Kong when such issues arise. In Wang Din
Shin v Nina Wang (Unrep. HCAP 8/1999, 21st November 2002), the plaintiff attempted to adduce
expert evidence related to the ink-dating technology to determine, inter alia, when the
documents were produced. 27 Having considered issues like the related legal principles of
admitting expert opinion evidence,28 the underlying scientific theory of the method used by the
expert witness, 29 the scientific validity of the method concerned, 30 and the acceptance of the
method by the scientific community and courts,31 and the results of the tests,32 the court refused
to rely on the expert evidence.33 While students are not expected to read the full judgment of this
case (with 658 pages) for the purpose of this course, they should pay attention to the discussions
related to the legal principles of determining whether to accept a ‘novel science’ or the application
of established science applied in a ‘novel manner’:-34
Chapter 20 - The Law
20.1 In The Ikarian Reefer [1993] 2 Lloyd's Reports 68, at 81-82, Cresswell J formulated the duties
of an expert and what is expected of him as follows :
"The duties and responsibilities of expert witnesses in civil cases include the following :
1. Expert evidence presented to the Court should be, and should be seen to be, the
independent product of the expert uninfluenced as to form or content by
the exigencies of litigation (Whitehouse v. Jordan, [1981] 1 W.L.R. 246 at p.256,
per Lord Wilberforce).
2. An expert witness should provide independent assistance to the Court by way of
objective unbiased opinion in relation to matters within his expertise
(see Polivitte Ltd. v Commercial Union Assurance Co. Plc., [1987] 1 Lloyd's Rep.
379 at p.386 per Mr. Justice Garland and Re J, [1990] F.C.R. 193 per Mr. Justice
Cazalet). An expert witness in the High Court should never assume the role of an
advocate.
25 Young, (see n11 above), [8-060].

26 Ibid, [8-061].
27 Wang Din Shin v Nina Wang (Unrep. HCAP 8/1999, 21st November 2002), chapters 18 and 19.
28 Ibid, chapter 20.
33 Ibid, [21.22], [22.19], [23.24], [24.16], [25.25].

3. An expert witness should state the facts or assumptions upon which his opinion
is based. He should not omit to consider material facts which could detract from
his concluded opinion (Re J sup.).
4. An expert witness should make it clear when a particular question or issue falls
outside his expertise.
5. If an expert's opinion is not properly researched because he considers that
insufficient data is available, then this must be stated with an indication that the
opinion is no more than a provisional one (Re J sup.). In cases where an expert
witness who has prepared a report could not assert that the report contained
the truth, the whole truth and nothing but the truth without some qualification,
that qualification should be stated in the report (Derby & Co. Ltd. and Others v
Weldon and Others, The Times, Nov. 9, 1990 per Lord Justice Staughton).
6. If, after exchange of reports, an expert witness changes his view on a material
matter having read the other side's expert's report or for any other reason, such
change of view should be communicated (through legal representatives) to the
other side without delay and when appropriate to the Court.
7. Where expert evidence refers to photographs, plans, calculations, analyses,
measurements, survey reports or other similar documents, these must be
provided to the opposite party at the same time as the exchange of reports (see
15.5 of the Guide to Commercial Court Practice)."
20.2 The aforesaid observations had been adopted by the Court of Appeal in England in Stanton v.
Callaghan [1998] 4 All ER 961, at 991a and, specifically, post-Woolf reforms, in Stevens v.
Gullis [2000] 1 All ER 527. In the Chief Justice's Working Party on Civil Justice Reform, paragraphs
496 and 497, it was said :
"496. After the CPR came into operation, in the English Court of Appeal's decision in Stevens
v Gullis [2000] 1 All ER 527, Lord Woolf pointed out that the duties in The Ikarian
Refeer continue to be reflected in, and given emphasis by, the new rules.
497. Reforms adopted in various jurisdictions all begin with the same premise, namely,
that the function of the expert is to help the court by providing independent and impartial
advice - not to act as an advocate for his client. This is reflected in rules which emphasise
that the expert's duty to the court overrides his duty to his client."
20.3 The Court's approach to the reception and evaluation of expert testimony was stated in Davie
v. Magistrates of Edinburgh [1953] SC 34, at 40 :
"Expert witnesses, however skilled or eminent, can give no more than evidence.
They cannot usurp the functions of the jury or Judge sitting as a jury, any more
than a technical assessor can substitute his advice for the judgment of the
Court. Their duty is to furnish the Judge or jury with the necessary scientific
criteria for testing the accuracy of their conclusions, so as to enable the Judge
or jury to form their own independent judgment by the application of these
criteria to the facts proved in evidence. The scientific opinion evidence,
if intelligible, convincing and tested, becomes a factor (and often an important
factor) for consideration along with the whole other evidence in the case, but
the decision is for the Judge or jury." (my emphasis)
This authority was followed in Hong Kong in a case of R. v. Yeung Kwok Fai [1996] 1 HKC 754, at
757H-1 and also in Australia in :

(a) R. v. O'Callaghan [1976] VR 676, and

(b) R. v. Lucas [1992] 2 VR 109.
20.4 In the United States, two cases have been referred to in evidence as setting the standards for
admissibility of scientific evidence in the United States :
(a) US v. Frye 293 F 1013 (1923) ("Frye"), and

(b) Daubert v. Merrell Dow 509 US 579 (1993) ("Daubert").
20.5 Frye was a case concerning the admissibility of polygraph or lie-detector tests. What is
referred to as "the Frye test" is satisfied if the scientific theory advanced is established to have
gained general acceptance in the particular field in which it belongs. Thus, the "general
acceptance" theory is still the underlying basis for the admission of scientific theories in the United
States. The Frye test has been stated to be in accord with the approach in England in the following
cases :
(a) R. v. Gilfoyle, The Times, 13 Feb 2001 per Rose LJ, and
(b) R. v. Clarke [1995] 2 Cr. App. R 425.
20.6 Daubert, to some extent superseded Frye in the United States, because thereafter the Federal
Rules of Evidence were promulgated which had some limiting effect. The US Supreme Court
in Daubert held that the trial judge must ensure that any and all scientific testimony or evidence
admitted is not only relevant but reliable. Proposed scientific testimony must be supported by
appropriate validation, that is good grounds, based on what is known to science. The law requires
that expert scientific testimony pertains to "scientific knowledge" and establishes a standard of
evidentiary reliability, i.e. trustworthiness. Evidentiary reliability is based on scientific validity. Thus,
in effect, Daubert added reliability to the requirement of general acceptance in Frye.
20.7 In the more recent case of Nelson v. American Sterilizer Co., 223 Mich. App. 485 (1997), the
Court emphasised on the proposed testimony of an expert must be derived from "recognized
scientific knowledge" and the inferences or assertions must be supported by appropriate objective
and independant validation based on what is known in scientific and medical literature.
20.8 From the aforesaid authorities, I accept the submissions of the Counsel for the defendant, Mr
Clive Grossman, SC, who appeared together with Ms Alice Lee (in this area of ink-dating only), that
certain principles may be derived, and each and all of which must be fulfilled if the Court is to
accept the evidence of a specific scientific theory, novel or not :
(a) The person propounding the scientific theory must have the necessary qualifications,
expertise, experience and integrity to ensure that the Court can have confidence that his
testimony is worthy of consideration.
(b) The theory must have a sound scientific basis, comprehensible to the Court.
(c) The theory should have gained widespread support amongst that sector of the scientific
community which would be likely to utilise it or its results.
(d) The methods used to carry out the scientific test should be safe and reliable, and follow an
established protocol, i.e. one that has been published, disseminated and acknowledged to
be reproducible.
20.9 The defence submitted that EJS's evidence fails at every single hurdle. I shall consider in the
next chapter whether that is the case and I shall start with the underlying scientific theory of the

Dye-ratio method. But before I do, I should point out that Counsel for the plaintiff did not submit
otherwise contrary to the defence submissions hereinbefore.
20.10 They only drew the Court's attention to the decision of the Court of Final Appeal
in Aktieselskabet Dansk Skibsfinansiering v. Brothers & Others (2000) 3 HKCFAR 70, where the
Court of Final Appeal reiterated the importance of putting to witnesses things which the Court is
invited to make findings adversed to the opposite party. In that case, because the allegation was
not sufficiently and clearly put to the party Mr Brothers, the Court of Final Appeal had taken the
unusual course of reviewing concurrent findings of fact in the courts below and reversed it. Lord
Hoffmann NPJ said, at p.91J :
" In addition to particularity in the pleadings, fairness requires that the adverse findings which the
Judge will be invited to make should have been put squarely to the witness in cross-examination,
so that he can have the opportunity to offer an explanation."
20.11 Lord Hoffmann NPJ in fact considered all other relevant pieces of evidence concerning the issue
of whether Mr Brothers had dishonestly concealed the cash flow position of the borrower company.
His Lordship said at p.92A that :
"The Court has examined in detail the relevant parts of the cross-examination of Mr Brothers and
I cannot find any place in which the two allegations about his state of mind were adequately put
to him."
20.12 His Lordship then examined in detail all the pieces of evidence (see pp.92-96) and came to
the conclusion that the evidence to contradict Mr Brothers is insubstantial, and thus the lender
company Aktieselskabet Dansk Skibsfinansiering had failed to discharge the burden of proof that
Mr Brothers "deliberately withheld the cash flow and, notwithstanding his belief in support, he
was dishonest in doing so".
20.13 The plaintiff relied on the case of ADS v. Brothers and submitted that some of the allegations
against Mr Speckin have not been put to him. I shall examine the evidence in the following chapters
the effects of such failure.
Another case showing the approach of the court to novel science or technology is HKSAR v Ho
Chung Yi Henry & Ors (Unrep. KCS 4906, 4907, 4908, 4909, 4910 and 4911 of 2013, 9th April 2014).
The prosecution in that case was required to prove that the construction of the unauthorized
building works had been commenced or carried out before an occupation permit was issued in
February 2007.35 The Buildings Department extracted core samples of the building’s floor slab for
further analysis by the laboratory under the guidance and instruction of the prosecution expert
witness using a method known as the Dynamic Modulus Test (“DMT”). 36 Note the following
comments from the Chief Magistrate as to why the DMT was not accepted:-
172. His substantial works on DMT is irrelevant to the timing of the construction of SLO [Skylight
openings]. PW9 Nina Quieta, the FT Lab’s technical staff once mentioned that one of the
objectives of conducting DMT is relevant to the age of the concrete. However, the key person
instructed the conducting of DMT is Professor Li who clarified that the test aimed at looking into
the micro cracks of concrete, which is irrelevant to the timing of the construction of SLO (see
paragraph 79 the purpose of the DMT test). Besides, the methodology adopted in this DMT is
one of hybrid of ASTM and ACI. While ASTM is the mainstream methodology and within the
35 HKSAR v Ho Chung Yi Henry & Ors (Unrep. KCS 4906, 4907, 4908, 4909, 4910 and 4911 of 2013, 9th April 2014), [83] –
[87],
36 Ibid, [76] - [79].

international standard, the ACI method is more relevant in academic aspect, the combination of
the two is yet to be proven. No sufficient paper has been written on it and thus there had been
no peer review. In R v J-LJ [2000] 2 SCR 600, the court proposed the following criteria for
considering whether to receive and consider opinion evidence based on “new” science.
“whether the theory or technique has been subjected to peer review and publication.
Submission to the scrutiny of the scientific community is a competent of ‘good science’, in part
because it increases the likelihood that substantive flaws in methodology will be detected;
the known or potential rate of error or the existence of standards; and
whether the theory or technique used has been generally accepted.
A “reliability assessment does not require, although it does permit, explicit identification of a
relevant scientific community and an express determination of a particular degree of
acceptance within that community.” Widespread acceptance can be an important factor in
ruling particular evidence admissible, and “a known technique which has been able to attract
only minimal support within the community.” … may properly be viewed with skepticism.
173. New science may still be accepted by the court provided that they have a proper foundation
with fairly stringent criteria. Technology such as DNA identification technology is one of the
examples[45]. However, when such new science was at early stage of development without
sufficient degree of acceptance within that community and did produce absurd result, the court
is entitled to look at it with skepticism because it may not be reliable. In the present case, part
of the DMT test did produce absurd result that enabled the defence to comment fairly some test
results of the coring samples were materials unknown to human. This submission is not without
merit.
…
175. I agree that the test is not conclusive or helpful at all, let alone proving the age of concrete
and the UBWs were constructed before the OP.
 Qualification of expert witness - another issue which is said to be related to the reliability of the
opinion given by the expert witness is the qualification of the expert. This is best illustrated by the
case of HKSAR v Tsang Chiu Tik & Anor [1999] 3 HKLRD 301. The defence sought to establish that
abnormality of the defendant’s mind was induced by the disease by calling a psychologist as an
expert witness. Read the following comments from the Court of Appeal to see how the court
addressed the issue regarding the expert’s qualification:-37
It may be seen that in England a distinction between psychiatrists and psychologists is clearly
drawn on matters involving psychiatric evidence.
The reference by Mr Poll to Bruce and McCoy, Criminal Evidence, V1 (355) and the cases cited
therein that a court may consider, when determining whether the person called as an expert is
sufficiently qualified to give expert opinion on the topic at issue before the court, expertise may
be gained through experience and on-the-job training and not necessarily through formal studies
or professional training has no application here. While this may be so in some areas of expertise,
in the speciality of psychiatry in medical science which is highly professional, we do not think a
person without medical qualification is sufficiently qualified to give expert evidence in this field.
37 HKSAR v Tsang Chiu Tik & Anor [1999] 3 HKLRD 301, 308H – 309B.
In the present case, Dr Law had been called to give his opinion as a psychiatrist that the first
applicant was suffering from an abnormality of mind and to say it was induced by a disease. The
clear distinction between the two professions and the absolute requirement of a medical
qualification for a psychiatrist show that a psychologist is not qualified to give medical evidence
in the speciality of psychiatry. An abnormality of the mind induced by disease is a matter of
medical diagnosis. The Judge was quite right not to have allowed Dr Law to give evidence as a
psychiatrist to that effect before the jury.
It should be noted that in the course of deciding whether an expert witness possesses the
necessary qualification to be expert of the particular field, not only that the field of expertise
concerned need not be something related to science, it is unnecessary for the expert to have
advanced academic qualifications and/or substantial practical experience in the field concerned.
Consider the discussions in HKSAR v Leighton Contractors (Asia) Ltd (Unrep., HCMA 508/2015, 5th
April 2016) and HKSAR v Chow Wun Shing (Unrep. HCMA 1187 of 1998, 1st April 1999).
In HKSAR v Leighton Contractors (Asia) Ltd (Unrep., HCMA 508/2015, 5th April 2016), the
defendant appealed against the convictions of various offences related to construction sites
safety.38 One the grounds of appeal raised by the defendant was that the trial magistrate erred in
accepting a prosecution witness (PW8) as an expert witness in construction sites safety.39 Below
are the judge’s comments in relation to this ground of appeal:-
Ground 2 – Expert Evidence

35. Ground 3 falls into three parts: first that the magistrate erred in ruling PW8 an expert
witness; second, the magistrate failed to assess or correctly assess the evidence of the expert
and third, the magistrate failed to warn himself that the expert was an employee of the
prosecution.
Was PW8 an expert witness?

36. I have read the evidence relating to the issue of expertise [footnote omitted]; the
curriculum vitae attached to PW8’s report [footnote omitted]; and the submissions made to the
magistrate by Mr Halkes [footnote omitted]. Save to emphasise that PW8 did not have any
significant relevant qualifications Mr Halkes, in arguing this ground of appeal, adopted his
submissions made to the magistrate [footnote omitted].
37. Although PW8, a registered safety officer, did not have any formal qualifications relating
to safety he had substantial working experience, including seven years directly related to
construction safety, which involved carrying out inspections and accident investigations on
construction sites. PW8 had been involved in many cases relating to work-at-height safety such
as use of improper working platform.
38. PW8 attended various seminars and short courses in safety and health management to
update his knowledge in occupational safety and health. PW8 prepared expert reports in
fourteen cases, two or three of which he was required to give expert evidence in court.
38 HKSAR v Leighton Contractors (Asia) Ltd (Unrep., HCMA 508/2015, 5th April 2016), [1] – [7].
39 Ibid, [20].
39. Considering PW8’s extensive working experience in construction site safety, including
issues of safety when working at height and that he attended seminars and courses to update his
knowledge on occupational safety and health, I am satisfied the magistrate was correct in ruling
PW8 an expert witness on occupational safety and health management [footnote omitted].
In HKSAR v Chow Wun Shing (Unrep. HCMA 1187 of 1998, 1st April 1999), the defendant was convicted
of the offence of engaging in bookmaking.40 One of the grounds of appeal was the trial magistrate did
not notify the defendant’s counsel at trial whether a prosecution witness (PW3) was accepted as an
expert in soccer betting activities.41 See how the Court of First Instance dealt with the matter:-42
Now I turn to the expert PW3. Mr Lok referred me to the case of James Langdon
Bonython (1984) 15 A Crim R 364, in which the South Australia Court of Criminal Appeal held that
in considering the admissibility of the expert opinion evidence, the judge must consider first,
whether the subject matter of the opinion fell within the class of subjects within which expert
evidence was admissable, and second, whether the witness had acquired by study or experience
sufficient knowledge of the subject to render his opinion of value in resolving the issues before
the court. Mr Lok relied on the second limb.
At the beginning of PW3's evidence, he told the court of his knowledge and experience.
His responsibility was to interview persons who were connected with gambling cases to collect
information and news from them. He started to be involved in gambling cases from 1986. He
received a training course for gambling experts. Ordinary gambling activities in Hong Kong were
covered by that course. In 1996, he was a trainer in the Detective Training School with
responsibility to train some experts on gambling. He kept up-to-date with his study and currently
he was the only full-time gambling expert in the police force. That was the reason why for all the
cases which were handled by the police force, they had some kind of research and carried out
certain studies on them and collected information about them. He had given expert evidence
nearly 300 times and his evidence was accepted on all of the occasions. He had handled a formula
betting case in respect of soccer, ie, relating to the British Premier League, prior to the World
Cup Competition. In the period during which the World Cup Competition was being broadcast,
PW3 was handling 14 soccer gambling cases, some of which had been dealt with by the courts
and finished. Out of the 14 cases, about 10 were pending trial whereas three cases had been
completed.
Mr To for HKSAR submitted, and I agree, that whether PW3 was correctly treated as an
expert was not only dependent on the number of occasions he had given evidence in court
relating to soccer gambling activities, but his other gambling experiences should also be taken
into account. I am not persuaded that PW3 was not qualified as an expert on soccer gambling,
especially in view of the large number of occasions that had given evidence as a gambling expert
in the courts, his study and research in gambling activities, and that at least on three previous
occasions prior to the trial before the Magistrate he had given evidence on soccer betting. Indeed,
when Ms Crabtree was asked by the Magistrate whether she wished to cross-examine on the
area of expertise, she responded by saying that she would wish to cross-examine PW3 but for
the moment she was happy for him to give evidence as an expert. She added that it might be on
particular areas that she was a bit concerned as to his expertise. However when PW3 had finished
his evidence, no application was made by Miss Crabtree either to sound her objection to the
40 HKSAR v Chow Wun Shing (Unrep. HCMA 1187 of 1998, 1st April 1999, p1.
41 Ibid, pp 2-3.
42 Ibid, pp 8-10.

acceptance of PW3 as an expert on soccer betting or to seek a ruling from the Magistrate that
PW3 should or should not be treated as such an expert. In the circumstances, Mr Lok's
submissions regarding the status of PW3 as a soccer betting expert are rejected.
The requirement of expert’s independence?
Another issue to be considered is whether there is any requirement for the expert witness to be
independent of the case/the parties. This issue can be examined separately in the contexts of criminal
cases and civil cases.
 Independence requirement in criminal cases? – in R v Chung Chen Hsin [1996] 1 HKCLR 120, the
defence sought to challenge the independence of the ballistic expert because he was also a
serving member of the Royal Hong Kong Police Force.43 See the comments from the High Court in
relation to this issue below:- 44
As one of the exceptions to the general rule that evidence is not admissible unless it is
immediately within the knowledge of the witness, the opinion of an expert may be admissible
‘wherever the subject is one upon which competency to form an opinion can only be acquired
by a course of special study or experience’. (See: Phipson on Evidence, 14th Edition, paragraph
32-07).
Experts do not decide cases but they may give an opinion to assist the tribunal in having a better
understanding as to how the evidence can be viewed based upon their special skill, learning and
experience. There are sometimes conflicts of evidence in this category, and the tribunal of fact
will then be left to decide which evidence it prefers.
The criminal law does not set limits on who may be regarded as an expert in any particular case
beyond the fact that it must be established that the witness is competent and properly qualified
to give such evidence. Where competency is disputed, that will be for the judge to decide.
From time immemorial, there has never been a requirement that an expert witness must be
independent of the prosecuting authority or, if called by the defence, of the accused. If such a
restriction were imposed on the prosecution, police officers could, by way of examples, never
give evidence in drugs’ cases as to value or the average consumption of an addict, or in road
traffic cases about accident reconstruction, or in fingerprint cases about the result of their
comparison with the accused’s known prints. Equally, if an inspector from the Labour
Department is able to give competent expert evidence in a case prepared and presented by his
department, the law says nothing which would prevent this.
Returning to the present case, Mr. Hugh Healy-Brown, a superintendent, is a ballistics officer
with 20 years’ experience and Mr. Hoo, Q.C. takes no issue on the question of competency. It is
accepted that the witness is highly qualified to give evidence in this field. I must, however, reject
the submission that Mr. Healy-Brown should not be permitted to give evidence simply because
it has not been established that he is independent of the police team who have investigated this
43 R v Chung Chen Hsin [1996] 1 HKCLR 120, 121D.

44 Ibid, 121H – 122J.
case. If I were to exclude the evidence on that basis, this would be contrary to all authority. His
possible lack of independence is only relevant to the weight to be attached to his evidence. If his
opinions are clouded by any bias in favour of the investigating team of officers, that will be a
matter for the jury to assess in due course, and they will be so directed.
 Independence requirement in civil cases? – in Maysun Engineering Co Ltd v International

Education and Academic Exchanges Foundation Co Ltd t/a Hong Kong Institute of Technology
(Unrep., DCCJ 27/2006, 22nd September 2010), the plaintiff sought an order from the court to rule
various expert evidence inadmissible while the defendant sought to adduce supplemental expert
evidence.45 The court found a surveyor expert did not make full and frank disclosure in terms of
the conflict of interests with the parties and ruled that the evidence of the said expert witness
was inadmissible.46
6.4 – Duties of the Expert Witness
In civil cases, the common law duties of the expert witness are summarised in the authority of National
Justice Compania Naviera SA v Prudential Assurance Co. Ltd (The Ikarian Reefer) (No.1) [1993] 2 Lloyd’s
Rep. 68. (see paragraph 20.1 of Wang Din Shin v Nina Wang (Unrep. HCAP 8/1999, 21st November
2002) above which quoted the relevant paragraphs in the Ikarian Reefer No. 1).
The duties of the expert witness in civil cases are further subject to O38 r35A, O38 r37C and the Code
of Conduct for Expert Witnesses of the Rules of the High Court (Cap. 4A) (“RHC”) and/or the Rules of
the District Court (Cap. 336H) (“RDC”):-
CAP 4A THE RULES OF THE HIGH COURT

Order 38 Evidence
…
35A.Expert witness’s overriding duty to Court (O. 38, r. 35A)
(1) It is the duty of an expert witness to help the Court on the matters within his expertise.
(2) The duty under paragraph (1) overrides any obligation to the person from whom the expert witness has
received instructions or by whom he is paid.
(L.N. 152 of 2008)
…
CAP 336H THE RULES OF THE DISTRICT COURT

Order 38 Evidence
…
35A.Expert witness’s overriding duty to Court (O. 38, r. 35A)
(1) It is the duty of an expert witness to help the Court on the matters within his expertise.
(2) The duty under paragraph (1) overrides any obligation to the person from whom the expert witness has
(L.N. 152 of 2008)
…
45 Maysun Engineering Co Ltd v International Education and Academic Exchanges Foundation Co Ltd t/a Hong Kong
Institute of Technology (Unrep., DCCJ 27/2006, 22nd September 2010), [1].
46 Ibid, [22] – [58].

In civil cases, the expert witnesses are required to make a declaration of their duties to the Court in
order for their expert reports to be admissible: O38 r37C of the RHC/RDC.

Order 38 Evidence
…
37C.Expert witness’s declaration of duty to Court (O. 38, r. 37C)
(1) An expert report disclosed under these rules is not admissible in evidence unless the report contains a
declaration by the expert witness that—
(a) he has read the code of conduct set out in Appendix D and agrees to be bound by it;
(b) he understands his duty to the Court; and
(c) he has complied with and will continue to comply with that duty.
(2) Oral expert evidence is not admissible unless the expert witness has declared, whether orally or in writing
or otherwise, that—
(a) he has read the code of conduct set out in Appendix D and agrees to be bound by it;
(3) Paragraph (1) does not apply to a report that was disclosed under rule 37 before the commencement* of
this rule.
(L.N. 152 of 2008)
Editorial Note:
* Commencement date: 2 April 2009.
…

Order 38 Evidence
…
37C.Expert witness’s declaration of duty to Court (O. 38, r. 37C)
(1) An expert report disclosed under these Rules is not admissible in evidence unless the report contains a
declaration by the expert witness that—
(a) he has read the code of conduct set out in Appendix E and agrees to be bound by it;
(2) Oral expert evidence is not admissible unless the expert witness has declared, whether orally or in writing
or otherwise, that—
(a) he has read the code of conduct set out in Appendix E and agrees to be bound by it;
(3) Paragraph (1) does not apply to a report that was disclosed under rule 37 before the commencement* of
this rule.
(L.N. 153 of 2008)
Editorial Note:
* Commencement date: 2 April 2009.
…
The Codes of Conduct for Expert Witnesses are set out in Appendix D of the RHC and Appendix E of
the RDC.


Appendix D Code of conduct for expert witnesses
Appendix D Code of conduct for expert witnesses

(O. 38 rr. 35, 37B and 37C)
Application of code
1. This code of conduct applies to an expert who has been instructed to give or prepare evidence for the
purpose of proceedings in the Court.
General duty to Court

2. An expert witness has an overriding duty to help the Court impartially and independently on matters
relevant to the expert’s area of expertise.
3. An expert witness’s paramount duty is to the Court and not to the person from whom the expert has
4. An expert witness is not an advocate for a party.

Declaration of duty to Court
5. A report by an expert witness is not admissible in evidence unless the report contains a declaration by the
expert witness that—
(a) he has read this code of conduct and agrees to be bound by it;
6. Oral expert evidence is not admissible unless an expert witness has declared in writing, whether in a report
or otherwise in relation to the proceedings, that—
Expert report to be verified

7. A report by an expert witness must be verified by a statement of truth in accordance with Order 41A of the
Rules of the High Court (Cap. 4 sub. leg. A).
Form of expert reports

8. A report by an expert witness must (in the body of the report or in an annexure) specify—
(a) the person’s qualifications as an expert;
(b) the facts, matters and assumptions on which the opinions in the report are based (a letter of
instructions may be annexed);
(c) the reasons for each opinion expressed;
(d) if applicable, that a particular question or issue falls outside his field of expertise;
(e) any literature or other materials utilized in support of the opinions; and
(f) any examinations, tests or other investigations on which he has relied, and the identity and details
of the qualifications of the person who carried them out.
9. If an expert witness who prepares a report believes that it may be incomplete or inaccurate without some
qualification, that qualification must be stated in the report.

10. If an expert witness considers that his opinion is not a concluded opinion because of insufficient research
or insufficient data or for any other reason, this must be stated when the opinion is expressed.
11. An expert witness who, after communicating an opinion to the party instructing him (or that party’s legal
representative), changes his opinion on a material matter shall forthwith provide the party (or that party’s
legal representative) with a supplementary report to that effect which must contain such of the information
referred to in section 8(b), (c), (d), (e) and (f) as is appropriate.
Experts’ conference
12. An expert witness shall abide by any direction of the Court to—
(a) confer with any other expert witness;
(b) endeavour to reach agreement on material matters for expert opinion; and
(c) provide the Court with a joint report specifying matters agreed and matters not agreed and the
reasons for any non-agreement.
13. An expert witness shall exercise his independent, professional judgment in relation to such a conference
and joint report, and shall not act on any instruction or request to withhold or avoid agreement.
Note:—Proceedings for contempt of court may be brought against a person if he makes, or causes to be
made, a false declaration or a false statement in a document verified by a statement of truth without an
honest belief in its truth.
(L.N. 152 of 2008)

Appendix E Code of conduct for expert witnesses
Appendix E Code of conduct for expert witnesses

(Order 38 rules 35, 37B and 37C)
Application of code
1. This code of conduct applies to an expert who has been instructed to give or prepare evidence for the
purpose of proceedings in the Court.
General duty to Court

2. An expert witness has an overriding duty to help the Court impartially and independently on matters
relevant to the expert’s area of expertise.
3. An expert witness’s paramount duty is to the Court and not to the person from whom the expert has
4. An expert witness is not an advocate for a party.
Declaration of duty to Court

5. A report by an expert witness is not admissible in evidence unless the report contains a declaration by the
expert witness that—

6.Oral expert evidence is not admissible unless an expert witness has declared in writing, whether in a report
or otherwise in relation to the proceedings, that—
Expert report to be verified

7. A report by an expert witness must be verified by a statement of truth in accordance with Order 41A of the
Rules of the District Court (Cap. 336 sub. leg. H).
Form of expert reports

8. A report by an expert witness must (in the body of the report or in an annexure) specify—
(a) the person’s qualifications as an expert;
(b) the facts, matters and assumptions on which the opinions in the report are based (a letter of
instructions may be annexed);
(c) the reasons for each opinion expressed;
(d) if applicable, that a particular question or issue falls outside his field of expertise;
(e) any literature or other materials utilized in support of the opinions; and
(f) any examinations, tests or other investigations on which he has relied, and the identity and details
of the qualifications of the person who carried them out.
9. If an expert witness who prepares a report believes that it may be incomplete or inaccurate without some
qualification, that qualification must be stated in the report.
10. If an expert witness considers that his opinion is not a concluded opinion because of insufficient research
or insufficient data or for any other reason, this must be stated when the opinion is expressed.
11. An expert witness who, after communicating an opinion to the party instructing him (or that party’s legal
representative), changes his opinion on a material matter shall forthwith provide the party (or that party’s
legal representative) with a supplementary report to that effect which must contain such of the information
referred to in section 8(b), (c), (d), (e) and (f) as is appropriate.
Experts’ conference
12. An expert witness shall abide by any direction of the Court to—
(a) confer with any other expert witness;
(b) endeavour to reach agreement on material matters for expert opinion; and
(c) provide the Court with a joint report specifying matters agreed and matters not agreed and the
reasons for any non-agreement.
13.An expert witness shall exercise his independent, professional judgment in relation to such a conference
and joint report, and shall not act on any instruction or request to withhold or avoid agreement.
Note:—Proceedings for contempt of court may be brought against a person if he makes, or causes to be
made, a false declaration or a false statement in a document verified by a statement of truth without an
honest belief in its truth.
(L.N. 153 of 2008)

For criminal cases, it was held by the English Court of Appeal in R v Harris [2006] 1 Cr App R 5 that
the duties of the expert witness set out in The Ikarian Reefer (No.1) should also be applicable to an
expert witness in criminal cases:-47
271. It may be helpful for judges, practitioners and experts to be reminded of the obligations of an
expert witness summarised by Cresswell J. in the National Justice Cia Naviera SA v Prudential
Assurance Co Ltd (Ikarian Reefer) [1993] 2 Lloyds Rep. 68 at 81. Cresswell J. pointed out amongst
other factors the following, which we summarise as follows:
(1) Expert evidence presented to the court should be and seen to be the independent product of
the expert uninfluenced as to form or content by the exigencies of litigation.
(2) An expert witness should provide independent assistance to the court by way of objective
unbiased opinion in relation to matters within his expertise. An expert witness in the High Court
should never assume the role of advocate.
(3) An expert witness should state the facts or assumptions on which his opinion is based. He
should not omit to consider material facts which detract from his concluded opinions.
(4) An expert should make it clear when a particular question or issue falls outside his expertise.
(5) If an expert’s opinion is not properly researched because he considers that insufficient data is
available then this must be stated with an indication that the opinion is no more than a provisional
one.
(6) If after exchange of reports, an expert witness changes his view on material matters, such
change of view should be communicated to the other side without delay and when appropriate to
the court.
273. In our judgment the guidance given by both Cresswell J. and Wall J. are very relevant to
criminal proceedings and should be kept well in mind by both prosecution and defence. The new
Criminal Procedure Rules provide wide powers of case management to the Court. Rule 24 and
Para.15 of the Plea and Case Management form make provision for experts to consult together
and, if possible, agree points of agreement or disagreement with a summary of reasons. In cases
involving allegations of child abuse the judge should be prepared to give directions in respect of
expert evidence taking into account the guidance to which we have just referred. If this guidance
is borne in mind and the directions made are clear and adhered to, it ought to be possible to narrow
the areas of dispute before trial and limit the volume of expert evidence which the jury will have
to consider.
274. We see nothing new in the above observations.
In R v B(T) [2006] 2 Cr App R 3, the English Court of Appeal added further requirements in relation to
the expert report to be prepared by parties in criminal proceedings:-48
Experts
174. In R. v Harris and Others [2006] 1 Cr.App.R. 5 (p.55) this court gave guidance in respect of
expert evidence given in criminal trials (see p.55). The way that the expert reports have been
prepared and presented for this appeal leads us to believe that it would be helpful to give some
further guidance in order to underline the necessity for expert reports to be prepared with the
greatest care.
47 R v Harris [2006] 1 Cr App R 5, [271], [273] - [274].

48 R v B(T) [2006] 2 Cr App R 3, [174], [176] – [177].
176. We desire to emphasise the duties of an expert witness in a criminal trial, whether instructed
by the prosecution or defence, are those set out in Harris. We emphasise that these duties are
owed to the court and override any obligation to the person from whom the expert has received
instructions or by whom the expert is paid. It is hardly necessary to say that experts should
maintain professional objectivity and impartiality at all times.
177. In addition to the specific factors referred to by Cresswell J. in the Ikarian Reefer [1993] 2
Lloyds Rep. 68 set out in Harris we add the following as necessary inclusions in an expert report:
1. Details of the expert’s academic and professional qualifications, experience and accreditation
relevant to the opinions expressed in the report and the range and extent of the expertise and
any limitations upon the expertise.
2. A statement setting out the substance of all the instructions received (with written or oral),
questions upon which an opinion is sought, the materials provided and considered, and the
documents, statements, evidence, information or assumptions which are material to the
opinions expressed or upon which those opinions are based.
3. Information relating to who has carried out measurements, examinations, tests etc and the
methodology used, and whether or not such measurements etc were carried out under the
expert’s supervision.
4. Where there is a range of opinion in the matters dealt with in the report a summary of the
range of opinion and the reasons for the opinion given. In this connection any material facts or
matters which detract from the expert’s opinions and any points which should fairly be made
against any opinions expressed should be set out.
5. Relevant extracts of literature or any other material which might assist the court.
6. A statement to the effect that the expert has complied with his/her duty to the court to provide
independent assistance by way of objective unbiased opinion in relation to matters within his or
her expertise and an acknowledgment that the expert will inform all parties and where
appropriate the court in the event that his/her opinion changes on any material issues.
7. Where on an exchange of experts’ reports matters arise which require a further or

supplemental report the above guidelines should, of course, be complied with.
For prosecution expert witnesses, they are further required to observe the Code of Practice for Expert
Witnesses Engaged by the Prosecuting Authority.49
6.5 – The Ultimate Issue Rule and Fact-finder’s Approach to the Expert Evidence
The Ultimate Issue Rule
At common law, no witnesses (regardless of whether they are witnesses of facts or witnesses of
opinion) are allowed to give an opinion of the ultimate issue of the case.50 The ultimate issue of the
case (in both civil and criminal proceedings) should be decided by the tribunal of facts and/or the
tribunal of law.51
49 See chapter 20 of the Prosecution Code. A copy of it is reproduced in appendix 3 of the Archbold Hong Kong Criminal
Law Pleading Evidence & Practice, 2018 Ed (available through WestLaw).
51 Ibid.

However, it has been accepted that such a rule is no longer strictly applied in criminal proceedings. In
HKSAR v Chan Yiu Shing & Ors [2018] HKCFI 312, Zervos J (as he then was) had the following discussions
in relation to the application of the Ultimate Issue Rule when the defence sought to challenge the
admissibility of the prosecution expert witnesses’ conclusion as to what would amount to explosive
substance:-52
11. It is now established that in the context of criminal proceedings, an expert can give his opinion
on the ultimate issue provided that the judge makes it clear to the jury that they are not bound by
the expert’s opinion, and that the issue is for them to decide. See HKSAR v Chin Kam Chiu, CACC
179/2004, 22 July 2005, unreported, per Lugar-Mawson J, giving judgment of the Court, at
paragraph 124, where the Court adopted and applied R v Stockwell (1993) 97 Cr App R 260.
12. The rule of evidence at common law that an expert witness should not give evidence in relation
to what is termed “the ultimate issue” in a case, namely, any fact in issue, has weaken considerably
over recent times. This is primarily due to the fact that the boundaries between acceptable expert
opinion and the opinion that addresses the ultimate issue has become blurred because of the
increasing complexity of evidential matters or issues that need to be addressed by the evidence of
expert opinion. This sometimes involves expert opinion on the ultimate issue in order to address
complicated scientific or forensic matters as well as compliance with requirements or standards as
seen in cases addressing accounting practices or professional standards.
13. It was Lord Taylor in Stockwell who accepted that if there was a rule prohibiting experts from
giving an opinion on an ultimate issue, “… it has long been more honoured in the breach than the
observance”.[footnote omitted]
14. In Chin Kam Chiu,[footnote omitted] the following passage from Stockwell was quoted with
approval:
“The rationale behind the supposed prohibition is that the expert should not usurp the
functions of the jury. But since counsel can bring the witness so close to opining on the
ultimate issue that the inference as to his view is obvious, the rule can only be, as the authors
of the last work referred to (Tristram & Hodkinson: Expert Evidence Law and Practice) say, a
matter of form rather than substance.
In our view an expert is called to give his opinion and he should be allowed to do so. It is,
however, important that the judge should make clear to the jury that they are not bound by
the expert’s opinion, and that the issue is for them to decide.”
15. In light of recent authority, an expert witness is able to give his opinion on an ultimate issue in
criminal proceedings, so long as that opinion is within the area of the expert witness’s expertise
and the judge makes it clear to the jury that they are not bound by the expert’s opinion, and that
the issue is for them to decide.
16. I should add, however, that this will depend on the particular circumstances of the case, but
primarily on the nature and necessity of the expert evidence, and the nature and contentiousness
of the ultimate issue concerned. I should also reiterate that, a critical factor is that the opinion
evidence is a matter within the field and knowledge of the expert. As observed by Gleeson NPJ in
Fu Kor Kuen Patrick v HKSAR (2012) 15 HKCFAR 524 at paragraph 51:-
“The propensity of some expert witnesses to express opinions not wholly or substantially
based on their specialized knowledge, but based upon inferences of fact outside their field of
particular training or experience is well understood. The danger for the proper process of
52 HKSAR v Chan Yiu Shing & Ors [2018] HKCFI 312, [2] – [4], [11] – [17].
fact-finding at civil or criminal trials is obvious. … An opinion, resting upon transparent factual
assumptions, based upon a branch of knowledge in which the witness is an expert, may be of
legitimate assistance to a finder of fact. It is when the witness goes beyond those bounds and
expresses a judgment on a matter outside his area of specialized knowledge that the danger
arises.”
17. Mindful of the relevant legal principles and for the foregoing reasons, I rejected the objection
by Mr Kwok as to the admissibility of the expert evidence of PW46 and PW47.
In HKSAR v Lo Chun Siu (Unrep., CACC 90/2013, 6th June 2014), the defendant was convicted of murder
after trial.53 In his appeal against conviction, a ground of appeal was whether the trial judge was wrong
in preventing the expert witness from expressing his opinion on ‘whether the ADHD condition of the
defendant substantially impaired his mental responsibility for his acts/omissions in the course of the
killing.54 The Court of Appeal ruled that the trial judge was correct in preventing the expert witness
from expressing his opinion on the ultimate issue:-55
rd
(i) Can the expert express an opinion on the 3 element [of the defence of diminished responsibility]?
119. It was argued for the applicant that the old case law relating to experts not being allowed to
comment on the ultimate jury issue no longer apply and the fact that the third element was a
matter for the jury is no longer a prohibition on the jury receiving expert evidence. We accept that
the legal position as to when an expert can testify on the ultimate question was accurately
summarised by Stock JA (as he then was) in HKSAR v Mo Sze Lung Thomson & Anor [2003] 2 HKC
356. At page 368 he said that whether or not expert evidence is admissible on the ultimate
question:-
“… depends on the facts of the case; upon the expertise, whether that expertise is relevant to
the ultimate question; whether the expert’s opinion on ‘the ultimate question’ is a conclusion
which depends upon his expertise or is proffered in some other capacity; and whether the
court requires the assistance of an expert upon the ultimate question.”
120. But, it is not possible to address the matters raised by Stock JA without first determining
whether the third element is a purely medical question or whether it is only a non-medical question
to which medical evidence may be relevant. Unfortunately, there appears to be a paucity of case
law on this subject but there is a decision of the New South Wales Court of Criminal Appeal on this
issue which we have found helpful.
121. It is the decision of R v Majdalawi (2000) 113 A Crim R 241. Spigelman CJ in giving the judgment
of the Court quoted the earlier decision of Hunt CJ at Common Law in R v Trotter (1993) 68 A Crim
R 536. This decision now represents the law of New South Wales in respect of the third element of
diminished responsibility which is expressed in identical language to our section 3. [footnote
omitted] At pages 537-538 Hunt CJ said:
“The ‘crucial’ question in the defence of diminished responsibility is, however, whether the
impairment of the accused’s mental responsibility for his act was substantial: Byrne (at 403).
Some impairment is not sufficient; if the abnormality of mind did not really make any great
difference, even though it may have made it harder for the accused to control himself, the
impairment is not substantial … .
It was held in Byrne (at 404) that medical evidence is relevant to this question as well, but not
decisive of it. The Court of Criminal Appeal pointed out (at 403-404) that the question involved
53 HKSAR v Lo Chun Siu (Unrep., CACC 90/2013, 6th June 2014), [1]
54 Ibid, [118]
55 Ibid, [119] – [125].

matters of degree, and that it is one which is essentially for the jury. And, as the question is
not merely a medical one of whether there was an impairment but also whether that
impairment can ‘properly’ be called substantial, it was pointed out (at 404) that this is a matter
upon which juries may quite legitimately differ from the medical experts. See also Lloyd [1967]
1 QB 175 at 179]. It is often put to juries that an impairment is substantial if it is such as
warrants the reduction of the crime from murder to manslaughter: Ignjatic (1993) 68 A Crim
R 333 at 346-347.
Those criteria demonstrate why expert medical evidence is not really of great assistance in
determining this crucial question of whether the impairment is substantial. The doctors are
obviously qualified to say whether the extent of the particular impairment to the accused’s
perceptions, judgment and self-control is slight, moderate or extensive, or somewhere in
between, but whether that impairment to the accused’s mental responsibility for his actions
may ‘properly’ be called substantial (in the sense of being such as to warrant the reduction of
the crime from murder to manslaughter) is not a matter within the expertise of the medical
profession. That is a task for the tribunal of fact, which must approach that task in a broad
commonsense way: Byrne (at 404); Walton (at 793). It involves a value judgment by the jury
representing the community (or by a judge where there is no jury), not a finding of medical
fact.”
122. In a very brief concurring judgment in Majdalawi Adams J put the legal position succinctly and,
we believe, accurately. He said at paragraph 36 of the judgment:
“It is important to note that the value judgment by the jury representing the community to
which his Honour the Chief Judge at Common Law adverted in Ryan is a decision about
culpability. Hence it is not a medical question.”
123. Thus, the issue here is not so much one of allowing the experts to express opinions on matters
that are considered an ultimate issue for the jury to decide, but rather one of not allowing experts
to express an opinion that is outwith their expertise.
124. It is our view, therefore, that the third element of the defence of diminished responsibility is
not a purely medical question but a question to which medical evidence may be relevant. Thus, it
will be answered by drawing upon the expert medical opinions but they are only one of the sources
of evidence upon which the jury will draw in making their determination. The importance of
medical opinion may vary according to the abnormality of mind under consideration. Here, it is the
ability to exercise self-control. Where the abnormality of mind completely deprives a person of
that ability then medical opinion evidence will no doubt be the dominant form of evidence on
which reliance is made in answering the question of whether the accused’s mental responsibility
for his acts was substantially impaired. But where, as here, the abnormality of mind merely makes
it more difficult for the applicant to exercise control over his actions then medical evidence, though
still important, will not have the importance it has in the former situation.
125. For these reasons we do not think the judge was wrong to prevent the psychiatrists from
expressing opinions on the substantial impairment element of the defence and from directing the
jury to ignore such opinions where they had been expressed.
In civil proceedings, the Ultimate Issue Rule has been modified by s58(3) of the EO (See above for the
provision of s58 EO).
The factfinder’s approach to expert evidence
As mentioned above, a witness should not usurp the function of the tribunal of facts and/or that of
the tribunal of law. However, it does not mean that the tribunal of facts is free to accept or reject the
opinion of the expert at its own will. The tribunal of facts should not substitute its own view for the
expert’s opinion, nor should the tribunal of facts reject any uncontradicted expert opinion in the
defendant’s favour. Students may read HKSAR v Kissel [2014] 1 HKLRD 460, [180] - [216] for detailed
discussions related to this issue.
6.6 – Opinion Evidence and Hearsay Evidence56
In HKSAR v Kissel [2014] 1 HKLRD 460,57 the Court of Appeal discussed the relation between opinion
evidence and hearsay evidence. To establish the defence of diminished responsibility, the deendant
sought to rely on the expert evidence of 5 medical professionals. One of these experts, Dr Wong,
sought to include another expert report written by another psychiatrist, Dr Lui. 58 The prosecution
argued that Dr Lui’s report, as included in Dr Wong’s report, should be inadmissible because the
defence did not call Dr Lui as a witness.59
The Court of Appeal held while the common law recognises an exception to the rule against hearsay
that “expert witnesses are entitled to express opinions based on information, published or
unpublished and usually in written form, received from other experts”,60 an expert, however, “can
only rely on other experts’ works, including the published works of eminent authors if they are general
in nature and that they are part of the corpus of knowledge with which an expert in his field can be
expected to be acquainted.”61
Citing the article published by Professor Rosemary Pattenden, the position can be summarised as
follows:-62
1. Unless a common law or statutory exception to the hearsay rule applies an expert cannot give
substantive evidence of what others have told him.
2. There are two common law hearsay exceptions peculiar to experts. The first relates to technical
data widely used by members of the expert’s profession, not confined in relevance to the facts
of the case about which he is testifying and regarded as reliable. The second relates to knowledge
which the expert can be assumed to have and on which he draws to formulate his opinion and
to express working truths but which he has not learnt through personal experience. To some
extent these exceptions overlap.
3. An opinion by an expert based in whole or in part on hearsay is admissible if the party calling the
witness has proved or intends to prove the facts on which the expert relies, the opposite side has
formally admitted the facts on which the opinion is founded, or an exception to the hearsay rule
can be invoked.
4. If an expert expresses an opinion which is based on reported data which is to be or has been
proved by other evidence the expert can repeat the hearsay to the court for the purpose of
explaining how the opinion was reached.
5. If the hearsay basis of an opinion is not supported by admissible evidence at the end of the trial
and no exception to the hearsay rule can be relied upon, the opinion must be ignored unless the
hearsay played no real role in the formation of the opinion or the part based on hearsay can be
severed from the part based on first-hand knowledge.
56 Students may find it difficult to understand this issue without any understanding of hearsay evidence. The Course
Convenor suggests that students may read this sub-topic in conjunction with teaching materials of topic 8 in due course.
57 HKSAR v Kissel [2014] 1 HKLRD 460, [132] – [157].
58 Ibid, [62] and [77].
59 Ibid, [78].
60 Ibid, [132].
61 Ibid, [133].
62 Ibid, [135].

The Court of Appeal held that Dr Lui’s opinion, as included in Dr Wong’s report, did not fall into
any of such admissible categories.63
6.7 – Procedure related to Expert Opinion Evidence64
In Criminal Proceedings, the trial judge may wish to determine the admissibility of the expert evidence
early in the case, or at least be informed early of such possible issues related to the admissibility of
the expert evidence. A notice requirement is imposed on the parties to the criminal proceedings in
the District Court and the Court of First Instance.
CAP 221 CRIMINAL PROCEDURE ORDINANCE

Section 65DA Notice of expert evidence
(1) Following the committal of any person or the transfer of any charge or proceedings or action or matter
for trial in the court, or the making of an order for the retrial of any person in the court, if any party to the
proceedings proposes to adduce expert evidence (whether of fact or opinion) in the proceedings (otherwise
than in relation to sentence) he shall as soon as practicable, unless in relation to the evidence in question he
has already done so—
(a) furnish the other party or parties with a statement in writing of any finding or opinion which he
proposes to adduce by way of such evidence; and
(b) where a request in writing is made to him in that behalf by any other party, provide that party
also with a copy of (or if it appears to the party proposing to adduce the evidence to be more
practicable, a reasonable opportunity to examine) the record of any observation, test, calculation or
other procedure on which such finding or opinion is based and any document or other thing or
substance in respect of which any such procedure had been carried out.
(2) A party may by notice in writing waive his right to be furnished with any of the matters mentioned in
subsection (1) and, in particular, may agree that the statement mentioned in subsection (1)(a) may be
furnished to him orally and not in writing.
(3) If a party has reasonable grounds for believing that the disclosure of any evidence in compliance with the
requirements imposed by subsection (1) might lead to the intimidation, or attempted intimidation, of any
person on whose evidence he intends to rely in the proceedings, or otherwise to the course of justice being
interfered with, he shall not be obliged to comply with those requirements in relation to that evidence.
(4) Where, in accordance with subsection (3), a party considers that he is not obliged to comply with the
requirements imposed by subsection (1) with regard to any evidence in relation to any other party, he shall
give notice in writing to that party to the effect that the evidence is being withheld and the grounds therefor.
(5) A party who seeks to adduce expert evidence in any proceedings and who fails to comply with subsection
(1) shall not adduce that evidence in those proceedings without the leave of the court.
(6) This section shall not have effect in relation to any proceedings in which a person has been committed for
trial or ordered to be retried, or in which any charge or proceedings or action or matter has been transferred,
before the date on which this section comes into force.[cf. S.I. 1987/716 U.K.]
(7) In subsection (1), document ( 文件 ) includes, in addition to a document in writing—
63 Ibid, [136].
64 The procedural matters here are for students’ information only and they are not examinable in the evidence course.
(a) any map, plan, graph or drawing;

(b) any photograph;
(c) any disc, tape, sound track or other device in which sounds or other data (not being visual images)
are embodied so as to be capable (with or without the aid of some other equipment) of being
reproduced therefrom; and
(d) any film (including microfilm), negative, tape, or other device in which one or more visual images
are embodied so as to be capable (with or without the aid of some other equipment) of being
reproduced therefrom.[cf. 1968 c. 64 s. 10(1) U.K.]
(8) In this section, court ( 法院、法庭 ) includes the District Court.
(Added 68 of 1995 s. 8)
Paragraphs 5.3.8 and 5.3.9 of Practice Direction 9.3 – Criminal Proceedings in the Court of First
Instance also set out some requirements in relation to expert evidence:-
PD9.3 Criminal Proceedings in the Court of First Instance

…
(C) Expert evidence
5.3.8 If the prosecution intends to adduce expert evidence at trial, the expert report should, as far as possible,
be filed with the court and served on the defence before committal is sought.
5.3.9 If no expert report has been filed at the committal stage and where expert evidence is intended to be
adduced at trial, the parties should endeavour to adhere to the timeframe as set out in the Standard
Procedural Timetable (Fixture List) for the filing and service of expert reports. Where there is genuine
difficulty in complying with the timetable, the matter should immediately be brought to the attention of the
Criminal Listing Judge, providing detailed reasons and the suggested revisions to the timetable.
…
In civil proceedings, the relevant procedure is mainly governed by O38 of the RHC and RDC. In
summary: -
 O38 r4 of RHC/RDC deals with the court’s power to limit expert evidence to be adduced in Court;
 O38 r4A of RHC/RDC allows the court to appoint single joint expert witness to give evidence in
Court;
 O38 r35A of RHC/RDC sets out the overriding duty of the expert witnesses is to the Court;
 O38 r36 of RHC/RDC sets out restrictions on adducing expert evidence without leave of the Court;
 O38 r37 of RHC/RDC deals with the disclosure of expert report prior to trial hearing;
 O38 r37A of RHC/RDC requires the expert report disclosed be verified by a statement of truth
pursuant to O41A of RHC/RDC;
 O38 r37B of RHC/RDC sets out the duty of the party to provide expert witness with a copy of the
code of conduct;
 O38 r37C of RHC/RDC requires expert witness to make declaration of the duty to Court;
 O38 r38 of RHC/RDC allows the court to direct expert meetings before or after disclosure of
reports;
 O38 r39 of RHC/RDC allows partial disclosure of the expert evidence;
 O38 r41 of RHC/RDC allows expert evidence to be admitted as hearsay evidence;
 O38 r42 of RHC/RDC allows the use expert evidence disclosed by any parties in the party’s
evidence;
 O38 r43 of RHC/RDC allows the expert report disclosed be put as evidence at the commencement
of the examination in chief of the maker of the report; and
 O38 r44 of RHC/RDC allows the judge to vary or revoke any orders made in relation to expert
evidence if necessary.
Practice Direction 5.2 – Case Management also sets out requirements in relation to expert evidence:-
Practice Direction 5.2 – Case Management

…
20. Regarding expert evidence:
(1) the Court will not give permission for a party to adduce expert evidence unless that party has:
(a) identified the expert by name and field;
(b) identified the issue to which the expert evidence will relate (a mere reference to adducing expert
evidence "limited to the issue of liability" or "limited to the issue of quantum" is not sufficient); and
(c) considered the appropriateness of appointing a single joint expert in the case.
(2) A party who obtains expert evidence before obtaining leave does so at his own risk as to costs, except
where he obtained the evidence in compliance with a pre-action protocol.
…
*** End of Study Guide for Topic 6 ***

THE UNIVERSITY OF HONG KONG

DEPARTMENT OF LAW
LLAW3102 – EVIDENCE I
ACADEMIC YEAR 2020-2021 (SEMESTER 1)
TUTORIAL QUESTIONS
(TOPIC 6 – OPINION EVIDENCE)
Discussion Question for Tutorial 665
Background Information for Question 1
You are still working as a part-time intern of the law firm, Lai, Kwok, Cheung and Lau, Solicitors. This
time another partner of the firm, Ms Kwok (“Kwok”) wishes you to perform legal research on expert
opinion evidence.
Your lay client, Mr Yau Chin Chai (“Yau”) has been charged with one count of murder and has been
remanded in Jail custody pending the pre-trial review hearing in the Court of First Instance.
Yau remained silence after being arrested.
The prosecution case is that on 14th March 2019, Yau dated a ‘part-time girlfriend’, Ms Tam Tak Yee
(“Tam”). Yau paid HK$5,000 to Tam for a dinner in WanChai. After the dinner, Yau offered to pay
HK$5,000 more to Tam for a quick drink in a hotel room. Tam accepted the offer and went to the hotel
with Yau.
When Tam was about to leave the hotel room after the drink, Yau did not allow Tam to leave and
asked Tam to stay overnight. He also asked Tam to have sexual intercourse with him. Tam refused.
Yau took a folding knife and attacked Tam.
Yau left the hotel room in the early morning of 15 th March 2019. Tam was found dead on the floor of
the hotel room in by the hotel housekeeper in the afternoon of the same day.
An expert witness, Dr Wong, a psychiatrist in Hong Kong, was engaged to prepare an expert report for
Yau. The purpose of the expert report is to establish Yau’s abnormality of mind at the time of the
offence so that by virtue of s3 of the Homicide Ordinance (Cap. 339). If successful, Yau may avoid the
life imprisonment by defence of diminished responsibility (See appendix below).
Below are the extracts from Dr Wong’s report.
Extracts from the Expert Report

…
Upon repeated assessments, it is my conclusion that Yau is not and was not suffering from any abnormality
of mind.
…
Having said that, Yau has a very dominant character and he always tries to exercise control on others. This
explains why he was in extreme anger and decided to kill the Deceased in the case.
…
Further, there is a strong indication that Yau has been addicted to internet pornography and discussion
forums related to prostitution/ compensated dating/ part-time girlfriends. In my practice, I find many patients
having the same problem. This is likely to be a contributing factor as to why Yau decided to look for a “part-
65 The facts and names mentioned in this hypothetical question are fictitious.
time girlfriend” instead of having any proper relationship and why he wished to exercise control on the
Deceased. The Honourable Court may take this factor into account.
Question 1
a) Dr Wong shall be available to testify in court to explain his expert report. Discuss and explain
whether Dr Wong’s written and oral opinion will be admissible at trial.
b) In addition to the expert report of Dr Wong, Yau’s parents are thinking of calling Dr , an Associate
Professor in Asian Cultural Studies of the Kowloon University to be an expert witness for the
Defence.
They wish to establish the fact that in other countries where hiring ‘part-time girlfriends’ is popular,
accepting a drink in the customer’s / client’s residence is a sign of consent to sexual intercourse.
Tam’s acts of accepting the drink, taking the money but refusal to sexual intercourse could have
provoked Yau and therefore the defence of provocation set out in s4 of the Homicide Ordinance
(Cap. 339) would apply (See appendix below).
The test of provocation, in the simplest form, is:-

(i) Whether the defence was provoked to lose self-control; and
(ii) Whether the provocation of such gravity would make a reasonable man do what the
defendant did.66
Assuming it is possible for Yau to raise an additional defence of provocation, advise Yau’s parents
on the admissibility of the intended expert evidence.
66 See Archbold Hong Kong 2020, [20-57].

Appendix
CAP 339 HOMICIDE ORDINANCE

Section 3 Persons suffering from diminished responsibility
(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was
suffering from such abnormality of mind (whether arising from a condition of arrested or retarded
development of mind or any inherent causes or induced by disease or injury) as substantially impaired his
mental responsibility for his acts and omissions in doing or being a party to the killing.
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this
section not liable to be convicted of murder.
(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of
murder shall be liable instead to be convicted of manslaughter.
(4) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder shall not
affect the question whether the killing amounted to murder in the case of any other party to it.
[cf. 1957 c. 11 s. 2 U.K.]
CAP 339 HOMICIDE ORDINANCE

Section 4 Provocation
Where on a charge of murder there is evidence on which the jury can find that the person charged was
provoked (whether by things done or by things said or by both together) to lose his self-control, the question
whether the provocation was enough to make a reasonable man do as he did shall be left to be determined
by the jury; and in determining that question the jury shall take into account everything both done and said
according to the effect which, in their opinion, it would have on a reasonable man. [cf. 1957 c. 11 s. 3 U.K.]
*** End of Tutorial Questions for Topic 6 ***


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LLAW3102 – Evidence I

Study Guide and Tutorial Questions (20-21, S1) – Topic 06

THE UNIVERSITY OF HONG KONG

A. Topic Learning Outcome

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C. Essential Readings for Topic 6

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D. Optional Further Readings for Topic 6

 Criminal Procedure Ordinance (Cap. 221), s65DA.

 Barings plc v Coopers & Lybrand [2001] PNLR 551

 Code of Practice for Expert Witnesses Engaged by the Prosecuting Authority

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6.1 – The General Ban on Opinion Evidence

Example 6.1 – Statement of Facts vs Statement of Opinion

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6.2 – Exceptions to the General Ban?

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CAP 8 EVIDENCE ORDINANCE

6.3 – Admissibility of Expert Opinion Evidence

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Admitting expert evidence

The condition of relevance

The expert evidence

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The condition of necessity

18 R v Turner [1975] QB 834, 838C-D.

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As to that ruling The learned magistrate also said this:-

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 Medical diagnosis/prognosis/accepted medical practice/treatment;

The condition of reliability

The focus of this section of the Study Guide is the former.

Chapter 20 - The Law

25 Young, (see n11 above), [8-060].

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(a) R. v. O'Callaghan [1976] VR 676, and

(a) US v. Frye 293 F 1013 (1923) ("Frye"), and

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the known or potential rate of error or the existence of standards; and

whether the theory or technique used has been generally accepted.

Ground 2 – Expert Evidence

Was PW8 an expert witness?

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The requirement of expert’s independence?

43 R v Chung Chen Hsin [1996] 1 HKCLR 120, 121D.

 Independence requirement in civil cases? – in Maysun Engineering Co Ltd v International

6.4 – Duties of the Expert Witness

CAP 4A THE RULES OF THE HIGH COURT

CAP 336H THE RULES OF THE DISTRICT COURT

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CAP 4A THE RULES OF THE HIGH COURT

CAP 336H THE RULES OF THE DISTRICT COURT

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CAP 4A THE RULES OF THE HIGH COURT

Appendix D Code of conduct for expert witnesses

General duty to Court

4. An expert witness is not an advocate for a party.

Expert report to be verified

* End of Study Guide for Topic 6 *

* End of Tutorial Questions for Topic 6 *