Zn v. Secretary for Justice and Others

HCAL 15/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 15 OF 2015

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D E C I S I O N
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Introduction

1.This is an application by the applicant for leave to adduce expert evidence in a judicial review of alleged inaction by the respondents to protect him as a victim of human trafficking.

2.The expert evidence sought to be adduced by this application is from Ms Klara Skrivankova of Anti-Slavery International which is set out in a report dated 12 October 2015.

3.The respondents oppose the application.

Background to the application

4.The applicant’s case is that he was a victim of human trafficking, and was subjected to forced labour. The respondents take issue with the factual account given by the applicant, particularly in relation to his dealings with the relevant authorities concerned.  In general terms, the applicant’s grounds of complaint by this judicial review are that the HKSAR Government failed in its duties and obligations under the Hong Kong Bill of Rights Ordinance, Cap 383, in relation to human trafficking under Article 4 which prohibits slavery, servitude and forced labour. 

5.The applicant wishes to rely on the expert evidence of Ms Skrivankova in support of his case that he was a victim of human trafficking for the purposes of forced labour. 

Admitting expert evidence

6.Expert evidence in civil cases is admissible under section 58 of the Evidence Ordinance, Cap 8, subject to the rules of court.  See Order 38, rule 36 of the Rules of the High Court. 

7.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.

8.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.

9.Whether a witness is competent to give evidence as an expert is for the court to determine. In R v Bonython (1984) 38 SASR 45, King CJ, explained that the court should approach the issue by addressing the following questions.

“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.”

10.It is argued by the respondents that admitting expert evidence in judicial review proceedings is unusual and will only occur in very limited and specific circumstances.  They refer to Auburn, Moffett and Sharland, Judicial Review: Principles and Procedure (2013) at §§27.32-27.33; Fordham, Judicial Review Handbook, Sixth Edition, 2012, at §17.16.  Whilst that may be so given the nature of the subject matter that judicial review proceedings normally involves, there will be cases where expert evidence may be both appropriate and necessary, and in that event the general principles as to whether to admit expert opinion into evidence will apply.  

11.It is submitted by the respondents that it is not permissible to adduce expert evidence which purports to answer the question for which it is for the court to determine: R v Haringey LBC, ex p Norton (1998) 1 CCLR 168 at 180 per Deputy Judge Henderson QC.  This is not so much a prohibition on expert evidence regarding the ultimate issue, as a policy against allowing an expert to testify as to a matter that the court is perfectly capable of deciding.  In this respect, an expert should not usurp the function of the court given that the purpose of expert evidence is to explain to the court matters which it needs to understand, but cannot without expert assistance, as special knowledge or experience not possessed by the court is required in order to reach a just conclusion of the matter it is adjudicating upon: R (on the application of Lynch) v General Dental Council [2004] 1 All ER 1159 at §§24-25 per Collins J. 

12.There are some subjects upon which the court is generally incapable of forming an opinion unassisted, and others upon which it could come to an independent conclusion, but the assistance of an expert would be useful.  The need for expert evidence will very much depend upon the subject matter and the issues and circumstances of the case.  The basic principle is that expert evidence is admissible when it can assist the court.

13.In the present case, an affirmation has been filed by the respondents from Ms Wendy Leung, the Administrative Assistant to Secretary for Security, in which she discusses in detail policy and related matters with respect to human trafficking, giving details of experiences and situations elsewhere in the world.  In addition, she addresses certain concepts and features relating to human trafficking, such as victim identification, victim protection and prevention, and international cooperation.  This is relevant when considering whether to admit the expert evidence of Ms Skrivankova in whole or in part. 

Ms Skrivankova’s report

14.Ms Skrivankova was instructed to provide an expert report in this case by addressing whether the applicant was a victim of human trafficking and/or forced labour, and whether and when each of the relevant authorities concerned should have come to the conclusion that the applicant was a possible case of human trafficking, or when their duty to investigate should have been triggered. 

15.Ms Skrivankova was provided with all the materials that have been filed with the Court.  In her report, she first addresses the application of the definition of human trafficking to the present case by making extensive references to concepts and materials on the subject.  She then conducts an analysis of the steps taken by the relevant authorities in the present case which is mainly factual in nature.  The final part of her report is devoted to a discussion on due diligence and a state’s obligations in relation to victims of human trafficking.  There are numerous references to the comments made by Ms Wendy Leung in her affirmation which she discusses.

16.Ms Skrivankova analyses the materials and makes factual findings, whereupon she concludes that the applicant was a victim of human trafficking for the purposes of forced labour.  It is this aspect of her report that is mainly objected to by the respondents.

Ms Skrivankova’s expertise

17.Ms Skrivankova’s qualifications and experience as an expert on the subject of human trafficking are widely acknowledged.  There is no question that she is highly knowledgeable and experienced in the field of human trafficking and is a recognised expert. 

18.There is no attempt by Mr Jin Pao, for the respondents, to suggest otherwise, or to challenge her expertise on the subject of human trafficking. 

19.Ms Skrivankova has had vast and extensive field experience and has conducted numerous case studies on the subject.  It seems that she can address the intricacies and complexities of human trafficking and assist the court in understanding the indicia and characteristics of human trafficking as well as explaining relevant trends and experiences in other jurisdictions.  She has, it would appear on many occasions, given evidence before courts of law on this subject matter. 

20.I have no hesitation in concluding that there is a recognisable body of expertise on the subject of human trafficking of which Ms Skrivankova is an expert. 

Respondents’ objections

21.The main objection from the respondents against admitting the expert evidence of Ms Skrivankova concerns her acceptance of and reliance on the factual account of the applicant, which is in dispute, and the findings and conclusions she makes on the ultimate issue before this Court as to whether the applicant was a victim of human trafficking.  I should note that whilst in certain circumstances expert evidence can be based on assumptions, clearly if those assumptions prove to be incorrect, this can have an adverse affect on the expert opinion.

22.The respondents argue that part of Ms Skrivankova’s evidence is based on factual matters that are in dispute, which she treats as accurate.  The respondents object to expert opinion being given on a contentious factual basis.  In specific terms they object to the parts of her evidence in which she makes findings of fact, and seeks to resolve factual disputes or issues which they argue do not require specialist expertise and are solely a matter for the court to decide.  They submit that this renders her evidence as inadmissible. 

23.It is correct that the making of primary findings of fact is ordinarily not a matter which requires special knowledge or expertise which the court does not have.  From my point of view, the parts of Ms Skrivankova’s report where she makes findings or conclusions as if undertaking the role of a tribunal of fact is not appropriate, because these matters are in dispute between the parties, and it is the function of this Court to resolve and determine them which it is capable of doing without the assistance of expert opinion. 

24.Mr Paul Harris, SC, with Mr Azan Marwah, for the applicant, whilst acknowledging the respondents’ arguments, nevertheless urges that Ms Skrivankova’s evidence on these matters should be admitted for two reasons.  First, there have been cases where the findings and conclusions of an expert that a person was a victim of human trafficking have been led into evidence in court proceedings.  Secondly, it would be a question for the Court as to what weight should be put on such evidence. 

25.I agree with the respondents’ submissions on this point that the Court can decide the ultimate issue unaided.  The Court is perfectly capable of resolving and deciding the factual issues between the parties and therefore it would not be appropriate to admit expert evidence on this basis.  I, therefore, rule that her evidence on these factual matters is inadmissible.

Applicant’s submission

26.Mr Harris’s principal submission for seeking the admission of the expert evidence of Ms Skrivankova concerns the matters that he describes as the meat of the report.  He points to various passages in the report that addresses or comments on the indicia and characteristics of human trafficking.  Whilst some of the observations may be a matter of common sense, they have the authoritative backing of independent research and study and the benefit of expert commentary as to their meaning and significance. 

27.As he quite rightly points out, evidence from experts on human trafficking has been widely admitted in different common law jurisdictions and is accepted as a specialist field of knowledge.  He makes the comparison with expert evidence on triad societies which has commonly been admitted into evidence in Hong Kong courts in order to assist them to understand the structure and operation of triad societies together with the rituals and symbolism that are employed by them.  It is not dissimilar from human trafficking where patterns and features of it can be better explained by an expert. 

28.He submits that the applicant wishes to rely on the expert evidence of Ms Skrivankova in order to assist the court when considering key issues on victim identification and protection in relation to human trafficking. 

29.In any event, as I have already pointed out, the respondents have filed evidence concerning the subject of human trafficking generally, with specific reference to victim identification and other patterns and features of it.  I see no reason why the applicant in addition should not be able to similarly file evidence through an expert on the subject.

30.I agree with Mr Harris’s submissions that the parts of Ms Skrivankova’s report that do not deal with factual findings or conclusions are matters within her expertise which would be of assistance to the Court when adjudicating the issues between the parties. 

Conclusion

31.For the foregoing reasons, I will grant leave to the applicant to adduce the expert evidence of Ms Skrivankova as contained in her report dated 12 October 2015, except for the parts where she addresses the evidence for the purpose of making factual findings and conclusions.  If there are any doubts or questions as to the parts or passages of the report of Ms Skrivankova to which this order relates, the parties are at liberty to seek further direction from the Court. 

32.I make an order nisi that costs be in the cause.

Mr Paul Harris, SC, and Mr Azan Marwah, instructed by Daly & Associates, assigned by the Director of Legal Aid, for the applicant

Mr Jin Pao, instructed by the Department of Justice, for the respondents