Tang Ping-choi and Another v. The Secretary for Transport

cacv 81/2003

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 81 of 2003

(on appeal from LDMR NO. 38 of 2000)

BETWEEN

Before: Hon Rogers VP, Le Pichon and Yuen JJA in Court

Date of Hearing: 21 October 2005

Date of Judgment: 21 October 2005

Date of Handing Down Reasons for Judgment: 2 November 2005

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an application for leave to appeal to the Court of Final Appeal made on behalf of the 2^nd claimant, Mr Chan.  At the conclusion of the hearing of this application leave was refused with costs to the respondent.  This court did not make an order for legal aid taxation.

2.This case must rank amongst the most unmeritorious claims for compensation for resumption of land.  In so saying I consider that the word unmeritorious is, in the context, a euphemism.  As recorded in the judgment the 2^nd claimant received some $5 million as his half share of the compensation for land resumption in Tung Chung in 1998.  He had been growing lilies there and when the land was resumed he was permitted to remove the bulbs for which he had already been compensated. 

3.It is an established fact that planning for the West Rail started in December 1996.  In September 1997, there was a public announcement that the West Rail project would go ahead.  In 1997 and 1998 the 2^nd claimant entered into no less than 14 joint ventures with farmers who had land along the route of the future West Rail.  Those joint ventures were in respect of farming lily bulbs.  The 2^nd claimant used the bulbs he had been permitted to remove from Tung Chung.  There have been no less than 22 claims for compensation in respect of the land resumption for the West Rail by joint ventures in which the 2^nd claimant had an interest.

4.Not surprisingly, the Tribunal drew the inference that the 2^nd claimant’s farming activities along the West Rail route in relation to lilies was driven by an intention to gain compensation on the resumption of the land.  This court saw no reason to dissent from that inference.  Amongst other factors which might lead to that conclusion, apart from those already mentioned, was that there was reason to believe that the bulb planting was barely complete by the time of assessment of the compensation for land resumption.  There was even suspicion, strengthened by the production of a photograph by the claimants, that had been taken at night, that the planting had been hurriedly done overnight. 

5.During the course of the hearing of the appeal one of the complaints that was made by leading counsel on behalf of the claimants on more than one occasion was that the government had changed the basis on which the it was prepared to settle compensation claims out of court.  Counsel was, as might be expected with such a ground of complaint, totally unable to indicate what effect that would have on the claim in the proceedings.

6.With that background the 2^nd claimant now comes to this court for leave to appeal to the Court of Final Appeal, supported by legal aid, some 18 months after the judgment of this court had been handed down.

7.In the amended application for leave to appeal the questions said to be involved which were said to be of great general or public importance were phrased as follows:

“Whether there is a bar to the admissibility of expert evidence on the footing that there was a close relationship between the expert and the engaging party which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party however unbiased the conclusion of the expert is; Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg [2001] 1 WLR 2337, Whitehouse v Jordan [1981] 1 WLR 246, Regina (Factortame Ltd and others) v Secretary of State for Transport, Local Government and the Regions (No 8) [2002] 3 WLR 1104, Admiral Management Services Ltd v Para-Protect Europe Lts & ors [2002] 1 WLR 2772 and FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33

Whether the question of bias of an expert witness should be considered as a matter that go to weight instead of admissibility.”

8.In the skeleton submissions for the 2^nd claimant the questions were different.  The questions in the written submissions are:

“Whether a close connection between an expert and the party calling him would entitle a court to exclude the expert evidence of such expert.

Whether the principle expanded by Evans-Lombe J. in Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg [2001] 1 WLR 2337at 2340 C. in relation to admissibility of expert evidence, namely ‘where it is demonstrated that there exists a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be’, should be adopted in Hong Kong with any appropriate modification.”

9.In argument Mr Shum, who appeared on behalf of the 2^nd claimant on this application, drew this court’s attention to the various cases but he accepted the passage at paragraph 70 of the Factortame case as being good law.  That reads as follows:

“This passage seems to us to be applying to an expert witness the same test of apparent bias that would be applicable to the tribunal.  We do not believe that this approach is correct.  It would inevitably exclude an employee from giving expert evidence on behalf of an employer.  Expert evidence comes in many forms and in relation to many different types of issue.  It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence.  Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the court as soon as possible.  The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management.  In considering that question the judge will have to weigh the alternative choices open if the expert’s evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules.”

10.Initially Mr Shum put his argument on the basis that the non-admissibility of expert evidence because of apparent bias was a matter of discretion for the Tribunal or court concerned, but in the course of his argument this changed to being a matter of an absolute bar once it had been established that there was a real danger of bias.

11.In my view there is no question of great general or public importance which arises in this case for which leave should be given to appeal to the Court of Final Appeal.  The Tribunal excluded from consideration certain parts of the expert’s evidence out of what might be considered to have been an abundance of caution.  There is no ground for considering that the Tribunal did not consider fully and properly the evidence that could be accepted and the weight to be given to it.

12.Furthermore, it cannot be an absolute bar to the admissibility of expert evidence that an expert is employed by a party.  It is sometimes the case that the only suitable expert is employed by a party.  Moreover, in this case the expert was not employed by the party but was employed by a consultant of the party. 

13.Naturally, a court must always be careful with expert evidence.  An expert is invariably paid to give evidence.  If ever there were a reason to suppose there might be bias it must be where there is direct payment.  Furthermore, the party calling an expert can be expected to have satisfied itself that the expert would be giving evidence that would be along the lines that the party calling him would wish to take.  It would be naïve to suppose otherwise.  This is not to say that expert evidence is inadmissible or tainted.  It is for the court to be alive to these facts and only to accept evidence from an expert which is truly expert evidence and not opinions unsupported by proper factual basis. 

14.In these circumstances the application was refused. 

15.In view of the matters set out above, this court considered it was inappropriate to order legal aid taxation.  There is no justification for the expenditure of public funds on what started out on the pretext of being a speculative commercial venture and in reality was little more than an abuse of the land compensation provisions and of the previous benevolence of those who negotiated compensation for land resumption in an attempt to avoid litigation.

Hon Le Pichon JA:

16.I agree.

Hon Yuen JA:

17.I agree.

Mr Erik Shum and Ms Josephine Chow, instructed by Messrs Leung & Wan, for the 2^nd Applicant

Mr Nelson Miu, instructed by Department of Justice, for the Respondent