HKSAR v. Lam Chun Wing Gray

HCCC000333/1998

HCCC 333/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

CRIMINAL CASE NO. HCCC 333 OF 1998

-------------------

Coram: Deputy Judge McMahon in Court

Date of Ruling: 6 May 1999

----------------------

R U L I N G

----------------------

1. This is my ruling on the preliminary matter.

2. The Prosecution in this case wish to call as a witness a Mr HUNG, a Chemist currently attached to the Forensic Science Division of the Hong Kong Government Laboratory, to give evidence as an expert concerning the taking of "ice" in Hong Kong by addicts. That evidence, if allowed, will concern the unit dosage of "ice" in terms of an addicts consumption; the effect of ice upon the consumer so far as that relates to the frequency of usage and ancillary matters such as the quantity of the drug which may be considered potentially lethal and the method of consuming the drug.

3. Mr Wong for the Defendant objects to the calling of Mr HUNG on the basis that he is insufficiently qualified or experienced in these areas so as to be able to give expert opinion evidence. He says Mr HUNG will do little more than regurgitate in evidence that which he had read in overseas literature. He says that literature is irrelevant to Hong Kong and that Mr HUNGs knowledge of these matters so far as it applies to the circumstances of Hong Kong "ice" consumption is based on source materials which are too unreliable.

4. Mr HUNG in his evidence agreed that his formal qualifications and his studies in attaining those qualifications had no direct bearing on the matters that he is put forward to give evidence on in this case as an expert.

5. He said however that in the course of his duties at the Government Laboratory he had personally dealt with some 20 "ice" cases and had examined some hundreds of devices used for the consumption of "ice" in Hong Kong. Those dealings related to the analysis of the drug rather than the matters that he is put forward to give expert evidence on this case.

6. He said over the course of the last few years he had read literature dealing with the consumption of ice including articles published in "Microgram", a Journal published by the Drug Enforcement Agency of the United States Federal Government which he said was internationally recognised; special papers and reports such as those published by the Drug Enforcement Agency and the U.S. Institute for Research into Drug Abuse; the Brixton Drug Project Education Service and the U.S. National Alliance of State Drug Enforcement Agencies. These publications relate not specifically to "ice" but to drugs of abuse generally as well as the drug "ice".

7. His standard text so far as his drug analysis duties are concerned is a text called "Isolation and Identification of Drugs" which whilst having apparently no direct bearing on the matters that he is put forward as an expert on in this case does provide information as the levels of dosage of "ice" which are potentially harmful. He read other American Publications relating to the methods of administration of "ice".

8. He had attended no formal instruction on the topics upon which he is put forward as an expert save that he attended some classes in a drug toxicity course which dealt with "ice".

9. He has had access to the Government Laboratory records as to cases dealt with by it involving "ice" which provide details of amounts of seizures.

10. He agreed he had no personal dealings with addicts, was not aware of any literature based on surveys of addicts in Hong Kong and had not been provided with information as to the circumstances of the seizures the Government Laboratory records related to.

11. There is no issue that the matters of the methods of administration, average unit dosages and the effects of "ice" upon a consumer are matters in this case amenable to expert evidence and that the evidence of an expert in the area would assist the court. The sole issue is the expertise of Mr HUNG.

12. In my view Mr HUNGs possible expertise comes from 2 sources.

13. Firstly, the literature he has read. That literature is relatively sparse. All of it, with the exception of a one page Hong Kong pamphlet is overseas, mostly United States, literature. It consists primarily of publications of the U.S. Drug Enforcement Agency and other U.S. enforcement agencies, together with the U.S. National Institute of Drug Abuse.

14. Mr HUNG was quite candid in admitting that his own professional qualifications as a Chemist were of no assistance to him in respect to the knowledge he has gained in this area. That of course is common sense. The expertise of a Chemist, and particularly that of Mr. HUNG who has been primarily involved in the Government Laboratory with the analysis and detection of drugs, is on its face not relevant to an understanding or to knowledge of how addicts take drugs in Hong Kong. I note in this regard also that Mr HUNGs qualifications are purely as a Chemist, he is not the possessor of any Pharmacological qualification.

15. In my view his relatively narrow field of reading would be insufficient to allow Mr HUNG to be considered an expert on the methods of taking of drugs by addicts in Hong Kong. It does not establish him as a person with any independent knowledge of the field. He seems to me to be merely able to repeat what he has read. He admits that the subject matter is outside the field of his formal expertise. In my view if he were to give evidence, he would not be giving his own opinion but would simply be repeating what he had read in the relatively narrow field of overseas articles and journals so far as those articles and journals on occasion relate to the drug "ice".

16. He says he personally has dealt with 20 "ice" cases so far as his chemical analysis duties are concerned together with a large number of "hookahs" used for the purpose of consumption of "ice".

17. I do not think his dealings with the drugs and their paraphernalia for the purpose of detecting or analysing substances is sufficient for or even relevant to the opinions he is put forward to express.

18. The other aspect of his claimed source of expertise is his study of the records of the Government Laboratory relating to "ice" cases. These statistics, he says, he has obtained from the computer records of the Government Laboratory.

19. He presents or is intended to present a statistical analysis of the records of seizures, or more accurately the packets presented to the Government Laboratory for analysis, contained within the Laboratory's computers.

20. It seems to me that this is not a question of expertise at all but simply the presentation of records through the guise of a proposed expert. Mr HUNG is simply being used as an employee to present verbally in evidence the records, and his understanding of the records, of his employer.

21. Those records were not part of any epidemiological survey forming part of any body of knowledge relating to the subject matter. They are simply records which have been subjected to a statistical analysis.

22. Most dangerously perhaps they also are relatively sparse. Most notably, the total number of tin foil packets presented to the Government Laboratory over the past 31/2 years according to Mr HUNG is a total of 177.

23. On the basis of those 177 packets Mr HUNG is apparently going to be presented to have been able to form a view or opinion that the most common way of consuming "ice" in Hong Kong is by smoking it from tin foil. He may be right, but it seems to me that the information upon which this opinion is suggested to be based is too unreliable.

24. In view of Mr HUNGs lack of formal study or qualifications in the field in which he is proposed as an expert and in view of the nature of his source material, both in terms of its quantity and reliability, and so far as the American literature is concerned its relevance to Hong Kong, I do not think he has been established as sufficiently qualified to give evidence as an expert

on the subject matters that it is proposed that he do. He is rejected as an expert witness for the purposes of this case.

Representation:

Mr. Jonathan Man, SGC, for DPP

Mr. Philip Wong instructed by DLA for Accused LAM Chun-wing, Gray