THE QUEEN v. CHUNG CHEN-HSIN

IN THE HIGH COURT OF HONG KONG

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RULING

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1. This Defendant is charged, under Section 13 of the Firearms and Ammunition Ordinance Cap.238, with the unlicensed possession of a Chinese-made electronically operated 20" anti-riot pistol and ammunition.

2. On 30 October 1995, the Defendant's hand-luggage went through an X-ray machine as part of a routine security check at Hong Kong International Airport prior to his departure to Taiwan. An object, shaped like a pistol, was noticed by security staff, and the items mentioned in the particulars of the indictment were duly recovered from his bag. The Defendant, following his arrest, explained that he had bought the weapon in mainland China for the purposes of self-defence.

3. The prosecution proposes to call an expert in firearms to prove that this unusual weapon comes within the terms of a firearm as defined in section 2 of the Firearms and Ammunition Ordinance.

4. Mr. Alan Hoo Q.C. objects to the admissibility of that evidence on the ground that the expert is not sufficiently independent of the enquiry because he is a serving member of the Royal Hong Kong Police Force and is possibly connected to the police team who have investigated this case. Alternatively he argues that, in the event that the evidence is admitted, the jury should be warned that the ballistics expert may have a vested interest in the result of the case.

5. In support of his argument he cites, as persuasive authority only, the decision of Duffy J. in The Queen v. Kai Tai Construction Engineering Company Limited (Magistracy Appeal No.1123 of 1995). This was a decision arising from an appeal against conviction for failing to take all reasonable steps to ensure that workmen did not remain in a dangerous place without wearing the safety belts provided to the workmen. Two men had fallen to their deaths from the 22nd floor of a building when the scaffolding they were erecting collapsed.

6. Duffy J. in allowing the appeal, found that a "material irregularity" had occurred in the course of the trial because the learned Magistrate had been, as he expressed it:

".......... wrong to have placed any reliance on the evidence of (the expert) because he could hardly have been described as an independent and impartial witness."

Earlier in his judgment, Duffy J. said:

"It could not be right for the Labour Department, which was responsible for the prosecution of these matters, to call its own officers as expert witnesses to give opinion evidence to the Courts about the reasons for the accident."

7. Duffy J. in the course of his judgment also made reference to a similar decision he had reached in The Queen v. Manfield Building Contractors Limited (Magistracy Appeal No.499 of 1991) where the expert witness called by the prosecution was the Factory Inspector who was in charge of that investigation.

8. As one of the exceptions to the general rule that evidence is not admissible unless it is immediately within the knowledge of the witness, the opinion of an expert may be admissible 'wherever the subject is one upon which competency to form an opinion can only be acquired by a course of special study or experience'. (See: Phipson on Evidence, 14th Edition, paragraph 32-07).

9. Experts do not decide cases but they may give an opinion to assist the tribunal in having a better understanding as to how the evidence can be viewed based upon their special skill, learning and experience. There are sometimes conflicts of evidence in this category, and the tribunal of fact will then be left to decide which evidence it prefers.

10. The criminal law does not set limits on who may be regarded as an expert in any particular case beyond the fact that it must be established that the witness is competent and properly qualified to give such evidence. Where competency is disputed, that will be for the judge to decide.

11. From time immemorial, there has never been a requirement that an expert witness must be independent of the prosecuting authority or, if called by the defence, of the accused. If such a restriction were imposed on the prosecution, police officers could, by way of examples, never give evidence in drugs' cases as to value or the average consumption of an addict, or in road traffic cases about accident reconstruction, or in fingerprint cases about the result of their comparison with the accused's known prints. Equally, if an inspector from the Labour Department is able to give competent expert evidence in a case prepared and presented by his Department, the law says nothing which would prevent this.

12. Kaplan J., in UBC (Construction) Ltd. v. Sung Foo Kee Ltd. (1993) 2 H.K.C., quoted a short extract from a book entitled The Expert Witness written by George Goodwin in 1982:

Kaplan J. also made reference to the foreword written by Lord Diplock to that book which stressed:

13. There is insufficient material in the judgment of Duffy J. to understand the full basis of his decisions in the Magistracy Appeals to which I have referred.

14. In the example of The Queen v. Manfield Building Contractors Limited (above), no doubt the prosecution was unwise to choose, as its expert, the officer who was in charge of that particular prosecution. Even that, however, would not prevent him from giving evidence as an expert in his field, provided that the prosecution was able to lay the foundation for him to be accepted as such. The danger in such a case is that if an expert comes too close to the facts about which he may have an interest, this may colour his judgment and produce a biased opinion. This will be a matter for the tribunal which will then have to judge the weight to be attached to the evidence. The question of admissibility does not arise.

15. The learned Judge had great experience, and I would doubt that he confused an issue of admissibility with the separate issue of assessing the weight of admissible evidence. I am driven to the conclusion that Duffy J., in his somewhat concise judgment in The Queen v. Kai Tai Construction Engineering Company Limited (above), has omitted to explain the powerful reasons that must have existed to cast a doubt upon the expert called in that case or in the other case he cited. It was not, however, a "material irregularity" for the prosecution to have called a properly qualified expert from the same department responsible for that prosecution. That particular choice of phrase by Duffy J. seems to me to have been an unfortunate one, and it is to be hoped that it has not led to confusion elsewhere.

16. Returning to the present case, Mr. Hugh Healy-Brown, a Superintendent, is a ballistics officer with 20 years' experience and Mr. Hoo Q.C. takes no issue on the question of competency. It is accepted that the witness is highly qualified to give evidence in this field. I must, however, reject the submission that Mr. Healy-Brown should not be permitted to give evidence simply because it has not been established that he is independent of the police team who have investigated this case. If I were to exclude the evidence on that basis, this would be contrary to all authority. His possible lack of independence is only relevant to the weight to be attached to his evidence. If his opinions are clouded by any bias in favour of the investigating team of officers, that will be a matter for the jury to assess in due course, and they will be so directed.

17. Accordingly I rule the evidence of Superintendent Healy-Brown to be admissible.