Harvest Treasure Ltd and Others v. Cheung Fat Enterprises Ltd and Others

CACV 67/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 67 OF 2016

(ON APPEAL FROM LDCS NO 8000 of 2014)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This appeal raises the question of the extent to which an expert witness should give voluntary disclosure of information regarding professional disciplinary proceedings against him. It arises in the following circumstances.

2.The Applicants, as majority owners of the property at Nos 34, 34A & 34B Belcher’s Street and Nos 1A to 1C Rock Hill Street [“the Property”], applied under the Land (Compulsory Sale for Redevelopment) Ordinance Cap 545 [“LCSRO”] for a compulsory sale order in the Lands Tribunal.  To support their application, they retained a Mr C[1] [“the Expert”] as their expert witness to give evidence on various aspects of the application.  By the time of trial, the Applicants had acquired 96.5517% of the undivided shares in the Property.  They further acquired the interest of the 3^rd Respondent on the second day of trial.  Thus, by the end of the trial, there were only 4 respondents opposing the application, one of them being 1^st Respondent, represented by Mr Jonathan Lee at the Tribunal.  The other three opposing respondents (5^th to 7^th Respondents) were represented by another counsel.  The 1^st Respondent did not adduce any expert evidence.  The 5^th to 7^th Respondent called an expert Mr Kwan to give evidence.  The stances of these opposing parties were set out by the Tribunal at [15] and [16] of the judgment of 31 December 2015:

“ 15. As can be seen from the table in §13 above, R1 is owner of 2 units in the Building, namely Flat Nos 6 and 7 and the flat roofs adjacent thereto on the UG/F of the Building. Mr Lee said the contention of R1 is that the “age” and/or the “state of repair” of the Building is/are not justified for redevelopment under section 4(2)(a) of the Ordinance.  While R1 takes a neutral stance on the issue of valuation, the applicants are put to strict proof on the issue whether reasonable steps had been taken in respect of the acquisition.

16. The arguments put forth by R5-7 were on valuation of the unit held by them in joint name and whether reasonable steps had been taken under section 4(2)(a) of the Ordinance.  Further, R5-7 took the issue that the applicants had under-valued the redevelopment value (“RDV”) for sale of the Lot by auction, for instance, by over-estimating the area of the common parts on UG/F and over-valuing the construction cost of the hypothetical development.  It is also the position of R5-7 that the provision of the underground car park for the hypothetical development at the expenses of shop space which is obviously of higher value is not justified and unreasonable.”

3.The trial took place in August and September 2015.  Evidence closed on 24 August 2015 and the trial was adjourned to 15 September 2015 for closing submissions.

4.On 7 September 2015, solicitors for the Applicants wrote to inform the Tribunal that the Expert had been found guilty by the Hong Kong Institute of Surveyors [“HKIS”] of a charge of giving opinions in his professional capacity that were not, to the best of his ability, objective, reliable and honest.  His membership was suspended for 1 year as from August 2015.  At the same time, his membership with another professional body remained intact.

5.Mr C was informed of the outcome of the disciplinary proceedings on 21 August 2015, one day after he finished giving evidence at the Tribunal.  There was a lapse of 17 days between his being informed and the letter of 7 September 2015.

6.Before the letter of 7 September 2015, solicitors for the 5^th to 7^th Respondents had raised a query with solicitors for the Applicants about Mr C’s disciplinary matter in a letter of 5 September 2015.

7.The disciplinary proceedings against Mr C had a chequered history.  A complaint was referred to the HKIS on 14 January 2010 in respect of Mr C’s valuation report in an initial public offering document of 17 September 2009.  HKIS’s Preliminary Review Committee referred it to a Committee of Investigation [“CoI”] on about 14 June 2010 and Mr C was informed on 25 June 2010.  On 14 October 2010, the CoI recommended a formal charge be preferred and Mr C was informed of the same on 5 November 2010. Mr C took steps to challenge the recommendation and these culminated in the first application for judicial review.  Mr C was unsuccessful in that regard.  That set of proceedings ended on 12 July 2013 when the Appeal Committee of the Court of Final Appeal refused to grant leave to appeal.  

8.The charge was formally preferred against Mr C by HKIS on 14 December 2012 after Mr C failed in the Court of Appeal in the first application for judicial review.  After the refusal of leave to appeal by the Appeal Committee, disciplinary proceedings resumed.  An amended charge was preferred on 9 June 2014.  Originally, a hearing was scheduled to take place on 18 July 2014.  At the request of the solicitors for Mr C, the hearing was re-scheduled to 5 February 2015.  The disciplinary hearing before the Disciplinary Board actually took place on 5 and 6 February 2015.  Mr C was represented by counsel at the hearing.

9.As mentioned, the Disciplinary Board found Mr C guilty of the amended charge, The council of HKIS accepted the decision of the Disciplinary Board on 7 August 2015 and Mr C was informed of the same on 21 August 2015.  He challenged the finding by way of a second application for judicial review. 

10.By way of additional evidence, Mr C sought to up-date this court with information on the progress of the application for judicial review.  Apart from recording as a matter of fairness to Mr C by way of background that on 16 May 2016 the court made a consent order that the decision of the HKIS was quashed and HKIS had to pay the costs of Mr C in the second application for judicial review, we do not see any further significance of this development on the issue we have to decide in this appeal.  We shall explain further when we set out our views on the extent of the duty of an expert witness.  

11.Coming back to the case in the Lands Tribunal, Mr C gave his expert report to support the Applicants’ case on 29 May 2014.  It is plain from the chronology on the disciplinary proceedings that by then Mr C was fully aware of the disciplinary proceedings brought against him.  He was contesting the charge and after the conclusion of the first application for judicial review, he would have been aware that the disciplinary proceedings would continue.    

12.Mr C gave a supplemental expert report in the case on 18 December 2014 and a rebuttal report on 13 February 2015.  Mr C also signed joint statements with the expert acting for the 5^th to 7^th Respondents on 18 March and 10 August 2015. He gave oral evidence before the Tribunal on 19 and 20 August 2015.  In none of those instances did Mr C reveal that there were ongoing disciplinary proceedings by HKIS against him.

13.After the disciplinary proceedings were brought to the attention of the Tribunal, on the applications of the 1^st and 5^th to 7^th Respondents, it ordered the disclosure of the relevant information to them. 

14.Thus, when the parties came back to the Tribunal for closing submissions on 15 September 2015, they were fully aware of the disciplinary proceedings against Mr C and the outcome.  Counsel made submissions to the Tribunal on the impact of the disciplinary proceedings on the evidence of Mr C.

15.However, neither counsel for the 1^st Respondent nor counsel for the 5^th to 7^th Respondents applied for the re-call of Mr C for further cross-examination.  Nor did counsel applied for leave to adduce further or fresh expert evidence in light of the disclosure of the disciplinary proceedings against Mr C.

16.In the judgment of 31 December 2015, the Tribunal held that the evidence of Mr C was admissible notwithstanding the late disclosure of the disciplinary proceedings and the outcome of the same.  The Tribunal further assessed the weight to be attached to the evidence of Mr C in light of the absence of voluntary disclosure of the disciplinary proceedings by him prior to 7 September 2015.  The Tribunal held that there was no duty on the part of Mr C to volunteer information on the disciplinary proceedings up to the time when he finished giving evidence before the Tribunal.  The Tribunal further found that Mr C was qualified to give expert opinion evidence notwithstanding the suspension imposed by HKIS.

17.The Tribunal was mindful that it should not put itself into the shoes of HKIS or revisit its findings.  Thus it said at [64] of the judgment:

“ 64. We say at the outset that we are aware of the jurisdiction of this Tribunal in the sense that we are not to revisit the merit of the Decision nor the appropriateness of the Suspension.  Having read the Documents, we are of the view that the finding of the DB was made on the basis of one specific report.  What gave rise to the complaint and concern of the HKIS was the way of presentation. We are of the view that there was no evidence or suggestion that the same way of presentation had been adopted in the present case.  On the other hand, part of [Mr C]’s evidence had been agreed by the experts of R5-7 and [Mr C] had been thoroughly cross-examined on those areas where experts could not agree.  Prior to disclosure of the Charge and/or the Decision, reliability and honesty of [Mr C] had never been raised as an issue in the present case.  The argument is mainly on valuation methodology, choice of comparables, adjustments, hypothetical development appropriate for determining the RDV etc and interpretation of test result.  Most of [Mr C]’s statements and opinion in his reports were either agreed by Mr D Kwan for R5-7 or supported by examples or comparables that were not challenged.  We are not persuaded that [Mr C]’s evidence should be made inadmissible because of the finding of the DB.”

18.The approach of the Tribunal in the assessment of the weight of the evidence of Mr C was set out at [68] to [69]:

“ 68. We do not agree that less weight should be given to [Mr C]’s evidence just because of the finding of the DB.  We adopt the same reasons set out in the above.  We are of the view that the reasons given by [Mr C] in support of his assessment are most important for determination of issues.  As we have stated at §188 of Cheer Capital Limited v Unibase Investment Limited, LDCS 5000 & 6000/2013 (unreported, dated 12 June 2015) (“Cheer Capital”) the Lands Tribunal is not bound to accept the submission of any party and may rely upon its own experience in determining the dispute under section 4(1)(a) of the Ordinance.

69. We shall evaluate the strength of Mr C Chan’s evidence by examining the methodology adopted and reasons given by him taking also into consideration criticism of other experts and decide whether to accept assessment proposed by him and how much weight is to be attached.” 

19.The Tribunal also addressed the submission on behalf of the 1^st Respondent that HKIS found Mr C to be dishonest.  At [61], the Tribunal said,

“ 61. In [Mr C]'s letter dated 7 September 2015 (i.e. before the disclosure of the Documents to the Tribunal), he said ‘the decision of the Disciplinary Board does not contain any specific finding that the undersigned was not honest’.  This was followed up by Mr Mok in his submission.  To sum up, the main argument of Mr Mok was that what was alleged and found by the DB was that some presentation in the valuation report was gravely misleading.  Mr Mok drew our attention to certain paragraphs in the Decision in support of [Mr C]’s assertion and his submission but we think those passages are not relevant for the purpose of deciding the admissibility of [Mr C]’s evidence, suffice to say that they did not contradict Mr Mok’s submission.

20.In the end, the Tribunal accepted the evidence of Mr C and gave judgment granting a compulsory sale order accordingly.

21.The 1^st Respondent sought to appeal against that decision.  Leave was refused by the Tribunal on 18 February 2016.  On the renewed application for leave before us, we granted leave to appeal on 22 March 2016.

The issues in the appeal

22.At the leave hearing, we decided that even assuming there had been a breach of duty on the part of Mr C, it is a question of weight instead of a question of admissibility.  Mr C had signed a declaration in accordance with Order 38 Rule 37C of The Rules of the High Court.  This fulfilled the requirement in the rules for admitting his reports as evidence.  Whilst a breach of the Code of Conduct [“the Code”] in Appendix D of The Rules of the High Court and the failure on the part of an expert to give full recognition to his duty under the Code could be grounds for challenging the weight of his evidence, they should not be a ground for holding that such evidence is inadmissible.

23.Though Ms Eu had tried to argue that it is also a question of admissibility (citing Hong Kong Air Cargo Terminals Ltd v Commissioner of Rating and Valuation [2004] 2 HKLRD 702 and Maysun Engineering Co Ltd v International Education and Academic Exchanges Foundation Co Ltd DCCJ 27 of 2006, 22 Sept 2010), we did not accept that submission.  The court in Hong Kong Air Cargo Terminals, supra, had qualified its views on admissibility at [32] to [35].  In light of what had been said at those paragraphs, it may be better to regard that decision as a decision on case management, which the parties were content to accept (see [29] and [35], rather than a decision on strict admissibility.  Maysun Engineering, supra, was also a case decided in the context of case management.  What happened in that case was that the defendant had to seek leave from the court to file a supplemental report of its expert witness at a late stage and the court quite rightly took account of the conflict of interest on the part of that expert to reject the application.  Further, in view of various serious misgivings concerning that expert’s evidence, the judge concluded that grave doubt had been cast on the probative value of that expert’s evidence and no further time and costs should be squandered on evidence which was of questionable in value.

24.It should be noted that the scope of the English rules for excluding evidence generally (CPR 32.1), and expert evidence in particular (CPR 35.4(1)), is wider than the rules in Hong Kong.  In the Final Report on Civil Justice Reform, Recommendation 98 expressly rejected the adoption in Hong Kong of a provision similar to CPR 32.1.  Further, our Order 38 Rule 36 is narrower than CPR 35.4(1), see Final Report on Civil Justice Reform, Recommendation 101.

25.Under the Hong Kong rules, whilst we accept that having regard to the underlying objectives in Order 1A the court can (and very often should, see Chevalier (Construction) Co Ltd v Tak Cheong Engineering Development Ltd [2011] 2 HKLRD 463 at [20] to [21]) take account of the probative value of an expert report in the exercise of its case management discretion, and in that context, it could examine the matter by reference to an expert’s appreciation of his duty to the court, there is no general power on the part of the court to rule against the admissibility of an expert report on such ground in other contexts.

26.In the present case, the issue came before the Tribunal after the evidence of Mr C had been admitted as evidence.  The Tribunal has not been asked to exercise any case management discretion in respect of such evidence.  Hence, there is no scope for expunging Mr C’s evidence on the ground of his breach of duty towards the court or his failure to appreciate such duty.

27.Therefore we only granted leave to appeal in terms of the challenge to the weight attached to the evidence of Mr C.  Usually, the question of weight is a matter for the Tribunal.  This is particularly so when we are dealing with the weight of expert evidence as assessed by a specialist tribunal (with a specialist member) and the attack on weight is in respect of impeachment of the expert’s opinion by reason of his disciplinary proceedings and the subject matter of such proceedings is not related to the questions to be decided in the present proceedings.

28.However, the challenge by the 1^st Respondent can be summarized into these broad grounds:

(a) The expert has a duty to disclose the pending disciplinary proceedings and its outcome;

(b) The Tribunal failed to examine the critical question of whether Mr C was aware of his duties to the court as expert witness; and

(c) The Tribunal failed to have regard to relevant considerations, alternatively paid regard to irrelevant considerations.

29.In respect of (a), the Tribunal held that the expert does not have a duty to give voluntary disclosure of pending disciplinary proceedings.  In this appeal, Ms Eu contended that the Tribunal made an error of law in so holding.  This is the first issue we have to decide in the appeal.

30.Before the Tribunal, it does not appear that any point had been separately taken regarding the non-disclosure of the outcome and the lapse of time between Mr C becoming aware of the outcome and the letter of 7 September 2015, see [7] in the judgment of 26 February 2016 by the Tribunal refusing leave to appeal.  However, we have heard submissions from Ms Eu and Mr Mok (appearing for the Applicants) in that regard and in light of the general importance of this issue, we should examine and determine whether there is a duty on the part of the expert to give disclosure of the outcome as the second issue in the appeal.  

31.In respect of (b), the contentions of Ms Eu are premised on breach of the duties discussed under (a).  Thus, the extent of breach depends very much on our answers under (a).

32.Under (c), Ms Eu submitted that the Tribunal wrongly took account of these matters:

“ a) the credibility of Mr. Chan was not challenged when he gave evidence (at the time nobody was aware of the Charge/Conviction/Sentence except Mr. Chan);

b) the nature of the presentation or the facts in the case where he was disciplined was different from that in the present case (this has no relevance to the critical question whether Mr. Chan was aware of his duty as expert);

c) whether there was an express finding of dishonesty in DB’s reasoning/Decision, which referred to, inter alia, Mr. Chan’s experience and seniority and the grossly and wholly misleading way of presentation. Dishonesty was expressly mentioned as an element of the Charge. The DB found the Charge established beyond reasonable doubt and this was accepted by the General Council which then imposed the severe sentence of one-year suspension;

d) the Sentence was only to deprive Mr. Chan of voting;

e) part of Mr. Chan’s evidence was corroborated by Mr. Kwan (i.e. Mr. Kwan agreed with Mr. Chan by adopting his table on the Existing Use Value of all residential units of the Building).  There is no evidence that Mr. Kwan had done any independent work in the valuation of R1’s two units or any of the other residential units apart from the one residential unit belonging to Mr. Kwan’s client.  It can never be known if there would be any difference if the disclosure had been made and the other side had been put on a train of inquiry.”

The duty of disclosure on the part of an expert witness

33.Ms Eu submitted that an expert should owe a duty to the court to give full and frank disclosure of matters which are material for the assessment of his evidence like an applicant in an ex parte application. She further submitted that the test of materiality should be the same as the Peruvian Guano approach adopted in the context of discovery between parties.

34.Ms Eu principally relied on the Code and HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336 to support her contention.  For ease of reference, we set out the relevant provisions in the Code:

“ 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 received instructions or by whom he is paid.

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

...

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.

...”

35.Ms Eu also referred to some observations by the courts in the case law on the duty of an expert witness, citing Best Origin Ltd v Commissioner of Rating & Valuation LDGA 14/1998, 25 Feb 2008 [97] to [105]; Hong Kong Air Cargo Terminals Ltd v Commissioner of Rating and Valuation, supra, [19] and Maysun Engineering Co Ltd v International Education and Academic Exchanges Foundation Co Ltd , supra, [48] and [49].

36.The courts in Best Origin and Hong Kong Air Cargo Terminals were discussing the expert’s duty to be forthcoming in respect of his opinions offered to the court.  In Maysun Engineering, the court was referring to the potential conflict of interest in view of the relationship between the expert and the party.

37.In our judgment, the duties of an expert witness owed to the court are manifold and the general duties set out at paras 2 to 4 of the Code only advert to some broad and general aspects of his duties.  They should not be regarded as exhaustive.  The common law duties of an expert witness were elaborated in the case law including The Ikarian Reefer [1993] 2 Ll Rep 68; Tang Ping Choi v Secretary for Transport [2004] 2 HKLRD 284; Hong Kong Air Cargo Terminals Ltd v Commissioner of Rating and Valuation, supra; Chinachem Charitable Foundation Ltd v Chan Chun Chuen HCAP 8 of 2007, 2 Feb 2010 at [483] to [493], [498] and [500]; Maysun Engineering Co Ltd v International Education and Academic Exchanges Foundation Co Ltd , supra.  None of these cases relate to disclosure on matters relating to the general credit of the expert.

38.However, given the spectrum of expert duties adumbrated in the cases and the diversity in context in which the matter was discussed, the impact on the assessment of the evidence of an expert on account of a breach of a particular facet of the duties in one particular setting may well be different from a breach of another facet of the duties in another setting.  As we held above, it is a matter of weighing of the evidence rather than the admissibility of the evidence.  

39.In respect of a duty of an expert witness to give disclosure on matter relevant to his general credit as opposed to the substance of his opinion, one should start from the premise that in a civil trial the court tends to restrict investigation into collateral matters which is only relevant to the credibility of an expert.  Having said that, we accept that there could be greater leeway in the cross-examination of an expert witness as to his professional standing and expertise by reason of the privilege accorded to him to give opinion evidence to assist the court.  Even so, the court cannot afford to allow boundless fishing inquiries into the expert witness’ professional history.  The court must assess the probative value of a line of inquiry.

40.In this connection, the approach suggested by Hoffmann LJ (as he then was) in Vernon v Bosley [1994] PIQR 337 at 339 to 340 is apposite:

“ ... there are limits to the extent to which the parties can be allowed free rein. A party’s right to choose how to present his case may have to be balanced against other legitimate public or private interests. For example, both the opposing party and the general public have an interest in keeping down the length and cost of litigation. On this ground, the judge will sometimes rule inadmissible the exploration of side-issues which, though possibly having some potential relevance, do not appear sufficiently relevant to justify the time and expense which would be required to investigate them. ...

Similar fact evidence is sometimes regarded as subject to a special exclusionary rule, but at least in civil cases I think it can easily be accommodated in the wider general principle by which the judge decides whether evidence is sufficiently relevant to be admissible.  It shows that the degree of relevance needed for admissibility is not some fixed point on a scale, but will vary according to the nature of the evidence and in particular the inconvenience, expense, delay or oppression which would attend its reception. ...”   

41.Though it can be argued the fact that an expert is subject to pending disciplinary proceedings may potentially affect the court’s assessment of his reliability as an expert, the admission of such evidence to challenge the credit of the expert will invariably lead the court down the slippery slope of examining the merits of the disciplinary charge when the expert may be seriously contesting the charge.  As the Tribunal observed, as a matter of principle this is not a course the court should take. In short, collateral inquiry along such line is not sufficiently relevant to justify the court to embark on that exercise.

42.Disclosure of a pending disciplinary charge may or may not result in a detailed and costly collateral inquiry.  However, if there is a general duty of disclosure of pending charge, there are bound to be cases where the parties feel obliged to embark on a line of collateral inquiry and substantial time and resources may then be spent on such exercise that may turn out to be rather futile and irrelevant for the fair disposal of the real issues in the case.

43.Further, the limit of such a wide duty of disclosure is incapable of clear and certain demarcation.  Since many expert witnesses are not legally trained, the duty of voluntary disclosure should be certain and easily identifiable.  Otherwise, it would impose an undue burden on an expert (who may then have to seek legal advice on the extent of his duty to give disclosure, and this may increase the costs of the exercise for the litigants).  It could generate satellite litigation arising from disputes on such limit. 

44.Ms Eu accepted that it may be casting the net too wide if all pending charges have to be disclosed.  Instead she formulated the duty by reference to the duty of full and frank disclosure of an ex parte applicant.  In our judgment, this is not viable in the context of the disclosure of information on general credit as opposed to the substantive issues in a case.  In respect of collateral matters potentially relevant only on general credit, the line of relevance can be blurred with different persons reasonably holding different views.  If a pending non-trivial disciplinary charge could be relevant and should be disclosed, why not the fact that the evidence of an expert had been rejected or commented on adversely by courts on previous occasions? And what about complaints against the expert by his clients in other transactions in the past? What about pending negligence claims in which the expert or his firm is a defendant? The list can go on.  It shows that the formulation of Ms Eu is not workable in the present context.

45.It does not make any difference that the charge could, on one interpretation, involve dishonesty in a professional context.  As long as the charge is being contested, the court cannot assume that it would be proved to the requisite standard of proof.  Unless the court embarks on a collateral inquiry involving the merits of the charge and the defence to such a charge, it could not reach a conclusion that the charge has any relevance in assessing the weight of the opinion of the expert witness.  But such a course is clearly inappropriate.

46.Another way to test the matter is to assess the extent to which questions about the charge could be asked by way of cross-examination of the expert witness.  The proper test was set out by Sankey LJ in Hobbs v CT Tinling & Co Ltd  [1929] 2 KB 1 at 51, cited by Sir Anthony Mason NPJ in HKSAR v Lee Ming Tee, supra. at [175].  For the reasons given by His Lordship at [174], the mere fact that there is a pending charge is not relevant.  Rather, it is the substance of the charge and whether the expert has committed the acts alleged in the charge that is relevant.  If the expert witness is cross-examined on any pending disciplinary charge against him, the court should direct counsel to focus on the facts of the charge and in respect of such questions the answers of the witness are final.  Hence, in a case where the expert is disputing the charge and denying the imputation on his professional competence, it is unlikely that mere cross-examination on the existence of the charge could satisfy the test in Hobbs v CT Tinling & Co Ltd, supra.  

47.On the other hand, the position is different after the professional body has determined the charge and imposed a sentence, particularly a sentence which curtails the expert’s right to practise as a member of that professional body.  This is a clear bright line which can guide every expert in assessing whether the duty to disclose has arisen.  As we shall see below, this line has been drawn in the Code.  In that type of situation, the court need not engage too much on the underlying merits of the charge.  Though the expert may still challenge the finding by the professional body by way of appeal or judicial review, the court is in a much better position to contain the scope of any collateral inquiry in such scenario. 

48.When the finding of the disciplinary tribunal has been reversed on appeal or quashed by way of judicial review (as has happened in the present appeal), the court should be apprised of the latest position.  In most of the cases, the earlier finding (which had been reversed or quashed) will cease to have any significance.  The position is reversed back to a situation similar to the one before a charge is validly established and the approach discussed above based on Vernon v Bosley supra is applicable.  Even if there remains a difference in the opinions of the professional body and the expert on the substantive merits of the charge (as in the present appeal in light of the declaration of the Institute published on 30 May 2016 upon the quashing of its earlier decision in the judicial review), the court should not engage in such collateral debate.       

49.Coming back to the Code, in our judgment the rules as presently set out in the Code do not contain any express provision requiring an expert to disclose pending disciplinary proceedings against him.

50.Ms Eu submitted that paragraph 9 of the Code requires an expert to set out qualifications not only in respect of the opinion evidence offered by the expert, but also any qualification in terms of his qualifications as an expert which has to be specified in the report as per paragraph 8(a) of the Code.  According to counsel, pending disciplinary proceedings and the outcome of the same are a qualification to the expert’s professional qualifications.

51.The qualifications of a person as an expert are important because Section 58(1) of the Evidence Ordinance Cap 8 provides that the court only admit opinion evidence from an expert witness “on any relevant matter on which he is qualified to give expert evidence”.  Thus, if the opinion is in respect of a subject outside the expertise of his profession, the court should not consider his opinion, see HKSAR v Tsang Chiu Tik [1999] 3 HKLRD 301.

52.In our judgment, the mere fact that there are pending disciplinary proceedings against an expert witness does not militate against his professional qualifications.  Up until the establishment of the charge against him and a sentence of suspension or striking off is imposed, the expert is entitled to practise as a member of that profession, including the giving of expert evidence as such.  It is only when the relevant professional body decides the charges against the expert and imposes a sentence which prevents him from practising as a member of that profession that the professional qualification of the expert is subject to qualification.  It is at that point in time that paragraph 9 of the Code requires the expert to disclose such qualification to his professional qualification.

53.Thus, we conclude that under the Code, the duty of an expert to disclose disciplinary matters arises when he is found guilty of a charge and is sentenced in a way which curtails his right to practise as a member of a professional body.   

54.We turn to examine Ms Eu’s submissions based on HKSAR v Lee Ming Tee, supra.  That was a criminal case.  In that case, the Court of Final Appeal held that the prosecution owed a duty to give disclosure to the defence of a disciplinary inquiry on the professional competence of an expert witness. 

55.It should be noted that the Court of Final Appeal eschewed imposing such a duty on the expert, see [160] where Sir Anthony Mason NPJ said:

“ 160. There is no suggestion in the English authorities that, in the case of trials on indictment, the duty of disclosure to the defence is imposed on anyone other than the prosecution.  There are powerful reasons for confining to the prosecution the duty of disclosure.  First, it is for prosecuting counsel in the first instance to make a careful assessment of the materials in the possession of the prosecution, in the light of the issues and the circumstances of the case, with a view to ascertaining whether there is relevant material which may assist the defence in advancing its case or undermining the prosecution case.  Should a dispute arise for the trial Judge to determine, the trial Judge in effect reviews the prosecutor's assessment.  Secondly, it is unrealistic to impose a duty of disclosure on anyone other than the prosecution. The witness ordinarily lacks the professional skill and experience and the knowledge of the issues and circumstances of the case which are essential to the making of a judgment of whether it is necessary or not to make a disclosure. Thirdly, it would only add to the complexity of conducting a trial if witnesses and other strangers to the proceedings were expected of their own motion to volunteer to the court information which they conceive to be material to the proceedings.  The orderly conduct of the trial would be set at risk if the duty to disclose were not confined to the prosecution.”

56.Thus, the Court of Final Appeal held that such a duty was imposed on the part of the prosecution instead of the expert witness. There was no suggestion in the judgment that quite independent from the duty of the prosecution, the expert witness has a separate duty to give disclosure of pending disciplinary inquiry against him as a facet of his own duty to the court.  On the contrary, Sir Anthony Mason NPJ stated categorically that the expert witness had no such duty, see [169] and specifically rejected Seagroatt J’s suggestion to the contrary.

57.Hence, Ms Eu’s reliance on Seagroatt J’s first instance decision as set out at [40] is misplaced and demonstrably wrong in law.

58.Further, it should be noted that the Court of Final Appeal held that such duty was owed by the prosecution as part of the duty to disclose unused materials to the defence in a criminal case.  The nature and scope of such duty was explained at length by the Court of Final Appeal.  For present purposes, it suffices to highlight that the duty of prosecution to give disclosure goes beyond the usual duty of a party to give discovery in a civil cases.  Thus, Sir Anthony Mason NPJ said at [146],

“ The Court of Appeal confirmed this test in Brown [1994] 1 WLR 1599 and gave further consideration to the expression ‘an issue in the case’ and the disclosure of oral information. As to the first, Steyn LJ pointed out (at 1606H) that the expression must be given a broad interpretation rather than ‘the fairly narrow’ way in which it is used in a civil case. This leads to a difference as between discovery in a civil case, where a party is not entitled to discovery in respect of the credit of a party or witness, and disclosure in a criminal case. However, in a criminal case, according to Steyn LJ (at 1607A)

‘ the Crown is under a duty to give disclosure of significant material which may affect the credibility of a prosecution witness.’ ” (our emphasis)

59.With respect, in her arguments to advocate a similar duty in the context of civil proceedings, Ms Eu failed to take account of this significant difference between the duties of the prosecution in criminal cases and the duties of the parties in civil cases.

60.In our judgment, given the rule against collateral inquiry on general credit in civil litigation explained in earlier parts of this judgment, it is not correct to transpose the prosecutor’s Lee Ming Tee duty onto the solicitors for a party or the expert witness in adversarial civil litigation.

61.For these reasons, we hold that HKSAR v Lee Ming Tee, supra. did not establish that an expert witness in a civil case has a duty to give disclosure of pending disciplinary proceedings against him. The Tribunal was correct in rejecting the submission on behalf of the 1^st Respondent in this regard.

62.In conclusion, an expert witness has a duty to disclose voluntarily the outcome of disciplinary proceedings if it results in a sentence which curtails his ability to practise as a member of that professional body.  Other than that, there is no duty on the expert witness to give any voluntary disclosure of disciplinary matters.     

No breach of duty on the part of Mr C

63.It follows from the above analysis that Mr C did not owe any duty and therefore cannot be criticised for not disclosing the pending disciplinary proceedings against him before 21 August 2015.

64.Upon being informed of the outcome of the proceedings, Mr C had a duty to give disclosure.  Ms Eu submitted Mr C did not give disclosure until after probing from solicitors for the 5^th to 7^th Respondents.  Counsel said this was a breach of duty on his part.

65.We cannot accept this submission.  Though there was a lapse of 17 days between 21 August 2015 and the letter of 7 September 2015, it cannot be assumed that Mr C only informed solicitors for the Applicants on 7 September 2015.  As we observed earlier, counsel for the respondents did not appear to focus on what happened after 21 August 2015 before the Tribunal.  There was no request for recalling Mr C for cross-examination and it was not suggested to him that he only decided to disclose after the issue was raised by the letter from the solicitors for the 5^th to 7^th Respondents.   

66.Mr C had finished giving evidence on 20 August 2015.  He had no opportunity to answer the serious allegation of attempting to conceal the outcome of the disciplinary proceedings from the Tribunal until the probing by solicitors for the 5^th to 7^th Respondents. 

67.We agree with Mr Mok that based on the correspondence at that time, it could be inferred that some steps were taken between Mr C (and his own lawyers) and solicitors for the Applicants in formulating the proper way to give disclosure.  Further, it should be borne in mind that by that stage evidence had been closed and the trial was to be resumed on 15 September 2015 for closing submissions.   

68.As the 1^st Respondent sought to make out a case that the Tribunal should not have attached weight to Mr C’s evidence due to his failure to pay proper regard to his duty to the court as expert witness, it had to bear the burden of showing that there had been a breach of duty on the part of Mr C.  Yet its counsel chose not to ask for the recalling of Mr C for cross-examination and to instead rely on the materials then before the Tribunal to make good his case.  On the materials before us, in the absence of any factual finding by the Tribunal, we are not prepared to come to a finding that Mr C had breached his duty to give disclosure of the outcome of the disciplinary proceedings to the Tribunal.   

69.For these reasons, the 1^st Respondent had not made out a case of Mr C had been in breach of his duty owed to the court.  Thus, there is no question of drawing an inference from his breach of duty that he was not aware of his duty as expert witness when he gave evidence to the Tribunal.

The Tribunal’s weighing of the evidence of Mr C

70.In light of this conclusion, the appeal must be dismissed since the underlying premise for Ms Eu arguing that the Tribunal erred in its approach on the assessment of the weight of Mr C’s evidence rested on the existence of breach of duty on the part of Mr C.

71.Further, given that the decision of the Institute had been quashed and our analysis at para 48 above, the court should not embark on any collateral inquiry arising from the allegations raised under the charge.   

72.Moreover, after the disclosure of the disciplinary proceedings and its outcome, counsel for the 1^st Respondent chose not to re-call the expert for further cross-examination.  Nor did he seek to adduce further expert evidence to dispute the evidence of Mr C.

73.When the Tribunal adjudicated on the substantive application in December 2015, it did not have the benefit of the outcome of the judicial review.  It quite rightly considered the impact of the finding of the Institute on the reliability of the evidence of Mr C.  In the judgment of 31 December 2015, the Tribunal gave careful consideration to this issue. In the end, adopting the approach set out at the beginning of this judgment, the Tribunal found that it could act upon the evidence of Mr C.

74.Ms Eu submitted that the Tribunal failed to take account of Mr C’s lack of regard of his duty towards the court.  That submission must fail in light of our conclusions above. 

75.Ms Eu further submitted that the Tribunal took account of irrelevant considerations.  Of the five matters set out at paragraph 5 of the Notice of Appeal, items (a), (b), (c) and (e) are clearly relevant considerations.  Items (a) and (e) can be discussed together.  The absence of challenge to the substance of the opinion of Mr C, particularly when the respondents had the opportunity to do so after they learnt of the disciplinary proceedings, must be relevant in the Tribunal’s assessment of the weight that could be attached to Mr C’s evidence despite the findings by the Institute.  If Mr C’s opinion on issues before the Tribunal was controversial and contradicted by another set of professional opinion, the weighing process would be different and the relevance of the findings may also be different.    

76.As regards item (b), the charge was founded on the misleading presentation of opinion.  The difference in the presentation of materials in the subject matter of the charge and the reports placed before the Tribunal is relevant to the assessment of the relevance of the finding of wrongdoing against Mr C for the purpose of the present proceedings. 

77.As regards item (c), whether Mr C was dishonest in relation to the subject matter of the charge is again plainly relevant.  Ms Eu’s real complaint was that the Tribunal erred in accepting that Mr C had proper ground to contend that there was no specific finding of dishonesty against him.  We accept that dishonesty was an element of the charge.  We also note Ms Eu’s arguments regarding the seniority and experience of Mr C and the nature of the sentence imposed by the Council.  Nevertheless, having regard to all the materials, we are not persuaded that the Tribunal could be said to have been plainly wrong in that conclusion, which is a high threshold. 

78.As regards item (d), reading paragraphs 65 to 67 of the judgment together, it is quite clear that the Tribunal was dealing with Mr C’s ability to practise as an expert in the relevant field.  The Tribunal did not dismiss the significance of the findings on the basis that the suspension only deprived Mr C of the right to vote.

79.Ms Eu also raised some other miscellaneous points in her submissions which were not covered by the Notice of Appeal.  In light of our conclusion on the crucial issues as set out above, we are not minded to discuss those points in this judgment as they could not have any material impact on the outcome.

Disposition

80.We dismiss the appeal and order the 1^st Respondent to pay the costs of the Applicants in this appeal (including the summons for admission of fresh evidence as we held that it was proper for the court to be apprised of latest development) and the applications for stay of execution and leave to appeal.  The costs are to be taxed if not agreed.

Mr Mok Yeuk Chi, instructed by Mayer Brown JSM, for the applicants

Ms Audrey Eu SC and Mr Jonathan Lee, instructed by Hampton, Winter & Glynn, for the 1^st respondent

The 5^th to 7^th respondents, represented by Tai, Tang & Chong, excused from attendance