Introduction

In Harvest Treasure Ltd v Cheung Fat Enterprises Ltd(1) the Court of Appeal recently ruled that an expert witness is not obliged under the Code of Conduct for Expert Witnesses to give voluntary disclosure of pending disciplinary proceedings against him or her. An obligation of disclosure would arise where the expert witness has been sanctioned by the relevant professional body in such a way as to curtail his or her right to practise. The judgment also confirms that the courts are generally reluctant to permit cross-examination of an expert witness regarding a pending disciplinary charge, suggesting that there is a clear bright line between a pending charge and a charge that has been determined resulting in a non-trivial professional sanction.

Background

In Hong Kong, an expert witness instructed to give an opinion in court proceedings and who later gives evidence is bound by the Code of Conduct for Expert Witnesses and the related duties at common law.(2) Chief among these duties is the duty to assist the court and to be independent. The code was introduced as part of the significant procedural reform to the civil court rules in April 2009. It would be fair to say that the code has been one of the successes of those reforms.(3)

Lands Tribunal case

The underlying case in the Harvest Treasure Ltd appeal related to an application for the compulsory sale of land in proceedings before the Lands Tribunal. The applicant in those proceedings instructed an expert witness (a surveyor). Some of the respondents instructed their own expert witness. Lands Tribunal proceedings are essentially full-blown adversarial court proceedings presided over by a full-time judge.

The applicant's expert witness was subject to pending professional disciplinary proceedings before the Hong Kong Institute of Surveyors at the time that he prepared his expert report and gave evidence before the Lands Tribunal. He did not disclose this when giving his evidence. The disciplinary charge related to whether the expert witness had properly discharged his duties when giving evidence in unrelated court proceedings.

The expert witness was informed of the outcome of the disciplinary proceedings after giving evidence before the Lands Tribunal, but before the closing submissions. As a result of the disciplinary hearing, the expert witness's membership of his professional body was suspended for one year (although he remained a member of another professional body).(4)

The applicant's lawyers disclosed the outcome of the expert witness's disciplinary proceedings to the Lands Tribunal within approximately two weeks of the conclusion of those disciplinary proceedings – this was approximately one week before the Lands Tribunal proceedings concluded. In its judgment, the Lands Tribunal decided that the expert witness's evidence was admissible and that he was under no duty to volunteer disclosure of the disciplinary proceedings at the time that he gave evidence, because at that stage those proceedings were pending and had not concluded. Ultimately, the Lands Tribunal accepted the applicant's expert evidence and granted a compulsory sale order.

Appeal

One of the respondents appealed to the Court of Appeal (which hears appeals direct from the Lands Tribunal). Among other things, the respondent challenged the admissibility of the applicant's expert witness's report and its evidential weight.

At the outset, the Court of Appeal noted that the Lands Tribunal had not been asked to exercise its case management powers (as a first-instance court) to exclude the expert witness's report. While the courts have case management powers to control expert evidence at an interlocutory stage, by the time that the expert witness's disciplinary charge was disclosed to the Lands Tribunal he had concluded giving evidence and the tribunal was preparing to hear closing submissions. Therefore, the tribunal's case management powers had been limited at that point.

The Court of Appeal agreed with the Lands Tribunal that an expert witness giving evidence in civil proceedings in Hong Kong is not required to give voluntary disclosure of pending disciplinary proceedings. The mere fact of those disciplinary proceedings did not affect the expert's professional qualifications. However, the Court of Appeal went on to find that an expert witness has a duty to disclose disciplinary matters once a charge against him or her has been established and a sentence of suspension or striking off has been imposed – that is, a sentence that curtails his or her right to practise as a member of a professional body. In its conclusion, the Court of Appeal stated that:

"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."(5)

The focus of the appeal also lay in the respondent's challenge to the evidential weight to be given to the expert report, in light of the expert's disciplinary proceedings. However, that challenge failed primarily because the respondent had not challenged the substance of the expert's report in the Lands Tribunal proceedings (even after learning of the disciplinary proceedings). It does not appear that the content of the expert's evidence before the Lands Tribunal was particularly controversial.

The respondent's appeal was dismissed.

Comment

The Court of Appeal's decision is to be welcomed. It provides clarity as to when an expert witness and his or her instructing party (if aware) should voluntarily disclose the expert's professional disciplinary matters to a court or tribunal. The outcome of a disciplinary matter that affects an expert's ability to give evidence needs to be disclosed as soon as reasonably practicable (allowing the party affected and the expert witness time to take appropriate legal advice). There is a clear demarcation between, on the one hand, disciplinary proceedings that are pending and, on the other, disciplinary proceedings whose outcome is known and that result in non-trivial sanctions.

Such a demarcation also helps to avoid collateral attacks on a witness's credibility. Until the outcome of a professional disciplinary charge against an expert witness is known, a court cannot know whether it will be proven to the requisite standard of proof. If the expert witness succeeds in challenging a professional sanction on appeal, the disciplinary proceedings should not be relevant in any subsequent civil proceedings in which the expert may give evidence.

The Court of Appeal saw no criticism in the two or so weeks that it took the applicant to disclose the outcome of the disciplinary proceedings to the Lands Tribunal. However, the earlier this is done, the better. In the proceedings before the Lands Tribunal, while disclosure of the outcome of the expert witness's disciplinary proceedings was late, there was still time for the respondent to apply to recall him as a witness for further cross-examination. That would have given the respondent an opportunity to question the expert witness's qualifications or ability, rather than seeking to undermine his evidence on appeal.

Interestingly, in this case the disciplinary sanction against the expert witness in question was subsequently quashed. While this was not directly relevant to the appeal, a professional body should usually be slow to conclude that one of its members has acted negligently or dishonestly as a result of giving expert evidence in court or tribunal proceedings. An expert witness whose evidence comes within a reasonable spectrum of opinion is not negligent and should be afforded a fair degree of latitude. Without knowing more, something (on the face of it) seems odd with the outcome of the disciplinary proceedings before the Hong Kong Institute of Surveyors – judges applying a civil burden of proof on appeal are often less quick to judge and professional bodies might do well to remember this.

Finally, irrespective of the outcome in the case, parties and their lawyers preparing to instruct an expert witness should do proper due diligence. This includes asking questions (where applicable) about an expert's professional qualifications and disciplinary record. While the most important quality for an expert witness is expertise, clients and their lawyers need to mitigate against the prospect of unwelcome surprises.

For further information on this topic please contact Warren Ganesh or David Smyth at Smyth & Co in association with RPC by telephone (+852 2216 7000) or email (warren.ganesh@rpc.com.hk or david.smyth@rpc.com.hk). The RPC website can be accessed at www.rpc.co.uk.?

Endnotes

(1) CACV 67/2016, July 15 2016.

(2) Rules of the High Court (Cap 4A) Appendix D and cases such as 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 [2004] 2 HKLRD 702; Chinachem Charitable Foundation Ltd v Chan Chun Chuen, HCAP 8/2007, February 2 2010, at paragraphs 483-93, 498 and 500.

(3) Paragraph 9 of the code states: "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."

(4) The decision of the disciplinary body was subsequently successfully challenged on a judicial review by the expert (and with a costs order in his favour).

(5) Supra note 1, at paragraph 62. In a criminal case, there is a duty on the prosecution to give disclosure to the defence of a disciplinary inquiry regarding the professional competence of an expert witness: HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336.

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