HCMP 590/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 590OF 2014
(On an intended Appeal from DCEO No. 9 of 2011)
________________________
BETWEEN
SINGH ARJUN by his next friend SINGH ANITA GURUPRIT
PLAINTIFF
AND
THE SECRETARY OF JUSTICE
1st Defendant
HUNG KAM KAI
2nd Defendant
________________________
Before : Hon Lam VP and Barma JA
Date of Plaintiff’s statement : 13 March 2014
Date of Defendants’ statement : 18 March 2014
Date of Judgment : 21 March 2014
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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):
1. This is an application for leave to appeal against the decision of Judge Ko [“the Judge”] on 3 March 2014 refusing the Plaintiff’s application for leave to adduce expert evidence from Professor Bowling for the trial of the Plaintiff’s claims in DCEO 9 of 2011. The trial is scheduled to commence on 7 April 2014, with an estimate length of 8 days.
2. The Judge gave reasons for his decision in his written Reasons for Decision of 5 March 2014.
3. The decision of the Judge is an interlocutory decision, thus leave to appeal is required before the Plaintiff can appeal to this court.
4. In view of the impendency of the trial, instead of making an application for leave to appeal before the Judge, the Plaintiff applied directly on 7 March 2014 to this court seeking leave to appeal.
5. We should reiterate that in general a party intending to appeal against an interlocutory judgment or decision should apply to the lower court for leave to appeal before coming to this court. Further, this general rule should apply even in cases with some urgency. Though there can be cases with exceptional circumstances and extreme urgency which calls for the exercise of the power under Order 58 Rule 2(6) of the Rules of the District Court (the equivalent of Order 59 Rule 2B(4) of the Rules of the High Court) by this court to permit an application to be made directly to this court, this must be confined to the very exceptional cases.
6. There are a number of reasons for the general rule (viz application should first be made to the court below). First, the Court of Appeal is entitled to have the benefit of the views of the lower court on an application for leave. An important consideration for deciding whether leave should be granted is the merits of the grounds of appeal. Another important consideration is how an interlocutory decision may affect the conduct and progress of the action. At the court below, the judge hearing the leave application should usually be the same judge who has heard the original application, see Order 58 Rule 2(5) of the Rules of the District Court, the equivalent of Order 59 Rule 2B(2) of the Rules of the High Court. Thus, that judge would usually familiar with how the parties argued the application before the court in the original application (including concessions made, which might not be apparent in a judgment) and the impact of a case-management decision or other interlocutory order on the general conduct of the case and the trial thereof. The judge’s views on these matters will assist this court in weighing whether leave to appeal should be granted.
7. Second, even for cases with a degree of urgency (like the present one), the lower court should be able to entertain urgent applications for leave at a short oral hearing which could be listed within a short period of lead time. It should be remembered that leave applications are not the occasions to allow parties to repeat their arguments which should have already been canvassed fully at the original hearing. The draft grounds of appeal should focus everybody’s mind on why it is said by an intended appellant that the original decision was wrong. Aided by written submissions lodged beforehand, the court should have a reasonably clear idea as to the competing arguments before it. It should not allow any attempt to rehash contentions which have been adequately developed. Hence, properly managed, in general a leave application should not last for more than one hour. In most cases, a hearing of 30 minutes should be sufficient.
8. In this respect, one must have regard to the underlying objectives in Order 1A, in particular the need to have a sense of reasonable proportion and procedural economy in the conduct of proceedings. One must not lose sight of the fact that leave applications are only filtering processes and a lengthy hearing for such purpose carries a real and serious risk that the costs and time engaged is wholly disproportionate. Moreover, given that it is more difficult to list a matter for a lengthier hearing than a short 30 minute appointment, any unjustified disproportionate estimate length of hearing for a leave application will lead to the unwarranted prolongation of the litigation process, as such directly contradicting the objective of disposal of case in an expeditious manner under Order 1A Rule 1(b). The delay in the disposal of an interlocutory process (including appeals therefrom) will inevitably lead to a delay in the final disposal of the whole case.
9. Judges should therefore be more proactive in these applications and priority should be given to the prompt disposal of leave applications within a reasonable time after the making of the original decisions. The court should be actively engaged in deciding when and for how long an application for leave is to be heard. The registry should not allow the parties to put down disproportionate length of hearing or to fix a date of hearing which may have the effect of unduly prolonging the interlocutory process (and may even have impact on some milestone dates) in the pretext of non-availability of counsel. In simple cases, there is no reason why an application for leave cannot be handled by another counsel whilst the counsel involved in the original application can assist in the preparation of written submissions and drafting the grounds of appeal. Any estimate of hearing of more than one hour will have to be justified. If in doubt, the registry should check with the judge involved before a date is fixed for such applications.
10. Third, the processing of an application for leave at the court below should further focus the attention of the parties on the relevant issues and the unarguable grounds should be weeded out. As such, a first tier application before the matter is brought before the Court of Appeal serves an important function. Not only is this function valuable to this court, it should also be of value to the parties. The party applying for leave should obviously reflect on the arguability of his grounds if the lower court refuses leave. At the same time, the opposing party should also review the merit of the application in light of the contentions run at the first tier hearing. This should assist the parties in formulating and responding at the second tier stage if an application is made to the Court of Appeal for leave. In other words, this court expects the submissions advanced in the second tier level to be more concise and focused.
11. In the present case, we do not think the application of the Plaintiff is of such exceptional nature which warrants an exemption from a first tier application before the Judge. Also, we do not think it is of such extreme urgency that in practical terms there is not enough time to make such application.
12. Be that as it may, since our views above may not have been as generally appreciated as it should be, it was decided that we would entertain the present application. However, in the future, litigants and those advising them should be mindful of the approach of the court in dealing with these applications. Unjustified attempt to sidestep the first tier stage will not be entertained and this court will dismiss an application which should be brought in the first instance to the court below. Any delay and costs occasioned by such attempts will have to be borne by the unsuccessful applicant. In such case, such applicant would also have to take the consequence of the delay, even if it means that he would suffer prejudice as a result of his self-generated delay in the application for leave to the court below or in other respects.
13. Coming back to the merit of the present application, the decision of the Judge is in respect of the admissibility of expert evidence at the trial before him. The Judge, for the reasons he gave in his Reasons for Decision of 5 March 2014, took the view that the expert evidence of Professor Bowling could not assist him in the resolution of the issues before him.
14. In place of the way in which the Judge summarized the evidence of the Professor, Mr Blancflower SC submitted it should be summarized as follows:
“(1) Essential standards for effective police investigation and the recommended approach when investigating children (at §§13-32, 314-221);
(2) The influence of wider society in creating stereotypes and on individual human and institutional behaviour (at §§33-48);
(3) How racial stereotyping may infect the conduct of policing at both the institutional and individual officer level (at §§49-85);
(4) Evidence of racial stereotypes of South Asians in HK (at §§86-129, 307-323);
(5) The competence of police investigation in present case against objective essential standards (at §§171, 173-178, 186, 194, 202, 204-213, 228-229, 234-240, 288-306); and
(6) Factual indicators of racist stereotyping and profiling arising in the present case (at §268, 277-280, 324-330 and the Supp Report at §§1-15).”
15. We have read the reports of the Professor dated 26 February 2014 and 2 March 2014. We do not think the arguability of the intended appeal depends on how the report should be summarized. The crucial question is whether the evidence in the report is relevant and admissible for the purpose of the trial. Expert evidence, being opinions in its nature, should only be admitted in respect of subjects which the court needs expert assistance: para 2 of Code of Conduct for Expert Witness; Hong Kong Civil Procedure 2014 Vol 2 para J1/58/2. We do not think this fundamental rule is relaxed by Section 73E(5) of the District Court Ordinance. Otherwise, a trial on Equal Opportunities claims can easily be degenerated into a trial by opinions (whether expert or otherwise) which cannot possibly be the intention of Section 73E(5).
16. It is not simply a question of whether a person is qualified in giving the expert opinion, the objection is more fundamental in nature. In an area in which the court does not require any assistance from an expert, the fact that the opinion comes from the mouth of an expert is not going to take the matter further. This infringes the fundamental precept that in a court of law, it is the function of the judge (or in a case where it is a trial by jury, the jury) to make findings of fact. The function of a witness is to give evidence about what he or she witnessed as a matter of fact. Opinions are generally inadmissible because different people (whether expert or otherwise) could reasonably differ in their interpretation and assessment of the evidence and in everyday life such opinions are often formed (either consciously or sub-consciously) with a certain degree of preconceived notions based on one’s personal experience. Judges are required to put aside such personal notions in the exercise of their judicial powers. If opinion evidence can be allowed even in areas where the court does not need any assistance from an expert, there is a serious risk that trials will be unduly prolonged and entangled by unhelpful opinions expressed by persons tainted by some unspoken personal preconceptions which counsel need to take up much time by way of cross-examination to unveil.
17. In respect of an expert witness giving evidence in court, he is abided by the Code of Conduct for Expert Witnesses. Under the Code, the expert witness owes a paramount duty to the court to render his professional
18. Though Mr Blanchflower referred us to some authorities suggesting that the prohibition against the admissibility of evidence on the ultimate question is no longer applied with so much vigour as it did in the past (see R v Stockwell (1993) 97 Cr App R 260; Fenty v Arcadia Group [2013] FSR 37), we do not think the relaxation of that rule in any way negates the fundamental precept discussed above.
19. We note from the pleadings that the primary disputes are on the facts of the case though there could be legal arguments on the consequences to be followed upon the relevant findings being made. There is no need to have expert evidence on legal arguments. Nor does the court need any expert evidence in assessing the factual evidence. On the inference to be drawn from any primary findings, it is ultimately a matter for the Judge and, with respect, we do not find the reports of Professor Bowling to be of much assistance in that regard.
20. Mr Blanchflower placed reliance on some Canadian authorities to support the deployment of expert evidence from a sociologist on racial profiling in racial discrimination cases: Johnson v Halifax Police [2003] NSHRBID No.2; Nassiah v Peel Service Board (2007) HTRO 14. Counsel did not refer us to the relevant Canadian legislation in the context of which these cases were decided. Be that as it may, even assuming (without deciding) that the context is similar to our Racial Discrimination Ordinance Cap 602 [“RDO”], we do not think those cases could avail the Plaintiff in the present application.
21. The nature of the expert evidence admitted in those cases relied upon by Mr Blanchflower is quite different from those contained in the reports of Professor Bowling. In Johnson v Halifax Police [2003] NSHRBID No. 2, the expert in question, Dr Bernard, was a sociologist and had conducted research and published widely on the experiences of black people in Nova Scotia, as such well-qualified to give evidence on racism in Nova Scotia. Based on her research, she gave evidence that negative stereotypes were widely diffused in the culture of Nova Scotia and it operated at a sub-conscious level. She also gave evidence that considerable amount of anti-racism training was required to counter-act them and what such training would be. One aspect of the case was about racial profiling in police stopping of vehicles and sub-conscious racial stereotyping of black criminality in Nova Scotia was relied upon. Thus, one can understand why the Tribunal decided to admit such evidence. At the same time, we note that the Tribunal held that Dr Bernard’s evidence on racial profiling practices by the Halifax Regional Police were inadmissible as her research in that regard was not as comprehensive as it should be and it had yet to be published and as such not subject to any peer review.
22. In Nassiah v Peel Service Board (2007) HTRO 14, the expert was Professor Wortley who had been personally involved in two large sociological studies in racial profiling in Canada. His studies had been published and subject to peer review. In that case, the Tribunal admitted his evidence on racial profiling in Canada. The Tribunal found such evidence helpful. It was able to say that the phenomenon of racial profiling was as likely to occur in Peel (where no studies had been conducted) as it was in Toronto (where studies had been conducted) because the multi-ethnic character of the two community were sufficiently similar. The Tribunal said the evidence of Professor Wortley was useful in identifying factors or clues which pointed toward racial profiling or discrimination which might otherwise appear neutral if taken in isolation and without an awareness of the phenomenon of racial profiling. We also note that at para 137 of the judgment, the Tribunal did not find Professor Wortley’s evidence on his analysis of the facts of the case on a hypothetical basis to be useful.
23. In our case, Professor Bowling, no doubt a well-respected expert in England, has not conducted any personal studies on racial profiling in Hong Kong. Instead, he based his report on papers published by others. Insofar as the Plaintiff intends to establish that there is a prevalent phenomenon of racial profiling in Hong Kong towards South Asian as a step in asking the court to draw the inference that the actions of the police officer involved were “contaminated by racist stereotyping and prejudice”, he could (subject to expert directions being given and complied with) invite the court to read the articles or studies cited by Professor Bowling. It could be said that the citation of articles suffer from the drawback that no cross-examination can be conducted in respect of the same. However, Professor Bowling, not being the author of any of these articles, would not be able to answer questions which should be directed towards their authors. With respect, Professor Bowling’s evidence on racial profiling does not add much to what had been set out in those articles and studies. The court does not need the assistance from the professor in reading and understanding those articles and studies.
24. Further, we note that many of the articles or studies cited by the professor are not in the field of police works. In Omoruyi-Odin v Toronto District School Board [2002] OHRBID No 21 (a case cited in both Canadian cases relied upon by Mr Blanchflower), the Tribunal held that the extrapolation of evidence on discrimination in one field to another is not permissible.
25. In our view, though expert evidence on racial profiling may be of assistance even in a case of individual discrimination (in terms of informing the court of the sub-conscious stereotyping being at work in respect of some otherwise neutral actions), an expert should not be allowed to go through a step by step commentary of the evidence of the factual witnesses in the way the professor did in Part II of his first report.
26. On the question whether policing can come within the meaning of “service” under section 27(1) of the RDO, we agree with the Judge that the matters canvassed in Professor Bowling’s report do not contain any materials which the court cannot consider without the assistance of an expert.
27. There is no question of the trial being unfair to the Plaintiff if he is not allowed to adduce the opinion of Professor Bowling at the trial. A fair trial does not require the court to allow a party to put in whatever evidence he wishes to put in. On the question of racial profiling, subject to the question of expert directions and fair opportunity being given to the Defendants to respond to the same, there is no reason why the Plaintiff cannot put in whatever articles or studies on the relevant position in Hong Kong as evidence.
28. For these reasons, we refuse to grant leave to appeal to the Plaintiff.
29. We are also of the view that the application is totally without merit and we make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court that no party may request this determination to be reconsidered at an oral hearing inter partes.
30. We also order the Plaintiff to bear the costs of the Defendant in this application. Such costs are to be taxed if not agreed.
(M H Lam)
(Aarif Barma)
Written submissions by Mr Blanchflower SC and Mr Earl Deng, instructed by Vidler & Co, for the Plaintiff
Written submissions by Ms Janet W Y Ho, instructed by the Department of Justice, for the Defendants