CHUNG WING FAT POLYBAG PRINTING FACTORY LTD v. SECRETARY FOR TRANSPORT

LDRW 15 OF 2001

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

RAILWAYS ORDINANCE Application No. 15 of 2001

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D E C I S I O N  

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1. By way of Summons dated 2^nd December 2004, the Applicant applies for an order that the expert reports prepared by Mr. Lawrence Pang (Rule 20 reports) dated 8^th October 2004 and dated 27^th April 2004 or part of it as it is still adopted by Mr. Lawrence Pang be excluded on the ground that the contents of the reports are inadmissible.

2. The Applicant’s main claim in these proceedings is for business loss due to resumption of land.  This claim has been settled in 2003.  By a consent order dated 15^th September 2003, the Respondent is ordered to pay the Applicant the amount of any costs or remuneration payable under section 10(2)(e)(ii) of the Lands Resumption Ordinance up to 26^th August 2002 which amount is to be assessed by the Lands Tribunal if not agreed.

3. In pursuance of the consent order, the Applicant continues with the claims under section 10(2)(e)(ii) for surveyor’s fee, legal costs and disbursement.  The Applicant sets out the claims on various items of the surveyor’s fee in the Applicant’s Latest Position dated 7^th October 2004.  These claims are being challenged by the Respondent and in opposition, the Respondent filed the aforesaid reports of Mr. Lawrence Pang.

4. The report dated 27^th April 2004 (“the 1^st report”) consists of 12 parts, but Mr. K. C. Lam, Counsel for the Respondent, confirms at the hearing that the Respondent only relies on Part 1 to Part 8 of the report.  As to the report dated 8^th October 2004 (“the 2^nd report”), the Respondent relies on the entirety of the report.

5. Mr. H. W. Lam, Counsel for the Applicant, refers to a number of authorities and submits that Part 1 to Part 8 of the 1^st report are inadmissible.  His arguments can be summarised as follows: -

(1)	Part 1 is the opening statement introducing Mr. Pang’s expertise and experience.  This is inadmissible by virtue of the Court of Appeal decision in Chen Paul & Anor. v. Lord Energy Ltd. [1998] 1 HKC 702.
(2)	Part 2 is the introduction of the background of this action and also inadmissible by virtue of the case of Chen Paul.  Also the court does not need the assistance of an expert in this area: Paragraph 175.083, Volume 12 of Halsbury Laws of Hong Kong.
(3)	Part 3 sets out the relevant statutory provisions and is inadmissible in view of Chen Paul’s case.
(4)	Part 4 cites various case law on the meaning of “reasonably incurred or paid” and is inadmissible because the expert is giving evidence on what the law is: Chen Paul’s case.
(5)	Likewise in Part 5, the expert acts as an advocate in giving evidence on the law.
(6)	In Part 6 to Part 8, the expert is giving opinion on the reasonableness of each item of the Applicant’s surveyor’s bill, which should be matters for the court to determine: Paragraph 38/4/3 of the Supreme Court Practice 1999, Liddell v. Middleton [1996] PIQR 36, Midland Bank Trust Co. Ltd. and Another v. Hett, Stubbs and Kamp (A Firm) (1979) Ch 384, and Bown v. Gould & Swayne (1996) P. N. L. R. 130.

6. The 2^nd report consists of 5 parts.  Mr. H. W. Lam makes similar submissions as those for the 1^st report, i. e. Part 1 is inadmissible because it just introduces the background of the report, Part 2 is inadmissible because it is evidence on what the law is and Part 3 to Part 5 are inadmissible because they are matters for the court to determine.

7. The Respondent opposes the application on the following  grounds: -

(1)	There is doubt as to whether the Lands Tribunal has jurisdiction to exclude an expert report at an interlocutory hearing before trial.
(2)	Even if there is jurisdiction, the Tribunal’s discretion ought to be exercised to defer that issue for it to be raised at trial.
(3)	The Applicant is estopped from raising that issue as an interlocutory matter.
(4)	There is no bias on the part of the Respondent’s expert.

8. On the first issue of jurisdiction, Mr. K. C. Lam relies on the cases of Ko Chi Keung v. Lee Ping Yan [2001] 1 HKLRD 830 and Woodford & Ackroyd v. Burgess [2000] C. P. Rep. 79, and submits that the Lands Tribunal has no such inherent jurisdiction as in the Court of First Instance to exclude expert reports at an interlocutory stage.

9. In Ko Chi Keung’s case, Chung J held that under its inherent jurisdiction, the High Court had the power to rule on the admissibility of expert evidence before trial.  Chung J’s decision in fact went further than the decision in Woodfore & Ackroyd.  In that case, the UK Court of Appeal ruled that the High Court has jurisdiction to decide on the admissibility of expert evidence at pre-trial review, but not on other occasions before trial.  Chung J declined to follow the latter part of that decision and ruled that the matter is ultimately one of discretion on the part of the High Court (be it the master or the judge in Chambers).  In other words, Chung J ruled that such inherent jurisdiction could be exercised at pre-trial reviews and on other occasions before trial as well.

10. In Woodford & Ackroyd, it was also held that the question of admissibility could be tried under RSC, Order 33, rule 3, which permits a question or issue to be tried before trial.  This, however, does not concern the present application, as the Applicant is not seeking for this issue on admissibility to be tried before trial under Order 33, rule 3 of the Hong Kong Civil Procedure.    

11. So the question is simply whether the Lands Tribunal has inherent jurisdiction like the Court of First Instance to exclude the expert’s evidence before trial or trial of preliminary issue.

12. The cases of Ko Chi Keung and Woodford & Ackroyd make it clear that the Hong Kong Civil Procedure (apart from Order 33, rule 3 as aforesaid) does not empower the Court of First Instance to deal with admissibility of expert evidence before trial and the Court of First Instance has to rely on its inherent jurisdiction in order to have such power.  The Lands Tribunal, however, is a statutory creature.  It does not possess any inherent jurisdiction.  All its powers are derived from the provisions of the Lands Tribunal Ordinance and the rules thereunder.  There is simply no such express power to exclude evidence before trial under the provisions.

13. Mr. H. W. Lam seeks to rely on section 10(1) of the Lands Tribunal Ordinance to say that the Lands Tribunal has such power as in the Court of First Instance.  Section 10(1) reads as follows: -

“(1)	The Tribunal shall have the powers which are vested in the Court of First Instance in the exercise of its civil jurisdiction in respect of the following matters—
	(a)	the attendance, examination and payment of witnesses;
	(b)	the hearing of any matter with the assistance of an assessor or assessors;
	(c)	the consolidation or hearing of any matters;
	(d)	the punishment of persons guilty of contempt;
	(e)	the ordering of inspection of any premises or place;
	(f)	the entering and viewing of any premises or place;
	(g)	the enforcement of decisions, judgments and orders;
	(h)	the making of orders as to interim payments;
	(i)	the making of orders in default of any action by a party,
	and, so far as it thinks fit, may follow the practice and procedure of the Court of First Instance in the exercise of its civil jurisdiction.”

14. I do not see any wordings in section 10(1) which can give rise to the interpretation that the Lands Tribunal has power to exclude evidence of a witness before trial.  Section 10(1)(a) only deals with the attendance, examination and payment of witnesses, not exclusion of witnesses’ evidence.  The latter part of section 10(1) covers the practice and procedure of the Court of First Instance, not its powers or inherent jurisdiction.  So I do not see how Mr. H. W. Lam’s contention can be supported by section 10(1).

15. Mr. H. W. Lam also refers to a number of authorities in which expert evidence were excluded.  In those cases, however, the power to exclude evidence was exercised at the trials or on appeal, not at an interlocutory stage.  So they are not relevant to our present situation.

16. Mr. H. W. Lam further relies on section 10(6) of the Lands Tribunal Ordinance to say that the Lands Tribunal has power to exclude evidence at an interlocutory stage because section 10(6) does not distinguish between trial or interlocutory stage.  Section 10(6) reads as follows: -

“(6)	The Tribunal may admit in evidence any statement, document, information or matter, whether or not it would otherwise be admissible in evidence and attach such weight to it as may be appropriate in the circumstances.”

17. However, I think section 10(6) only empower the Tribunal to admit evidence which would otherwise be inadmissible.  It does not empower the Tribunal to exclude evidence.  In normal circumstances, the admission of evidence is dealt with by the trial judge at the trial.  The Court of First Instance, as in Ko Chi Keung’s case, has to resort to its inherent jurisdiction to say that it has power to exclude evidence before trial.  So, for the Lands Tribunal, there must be clear and express provision in the Ordinance to give the Tribunal such power.  Section 10(6) is far from being clear that there is such a power to exclude evidence before trial.

18. In fact, expert evidence is governed by rule 20 of the Lands Tribunal Rules, which does not stipulate any power for the Tribunal to exclude the evidence before trial.  So it is clear to me that there is no such statutory power given to the Tribunal.

19. Since there is no express provision in the Lands Tribunal Ordinance and the rules thereunder, and the Lands Tribunal does not possess the inherent jurisdiction of the Court of First Instance, I find that there is no power for the Lands Tribunal to exclude any evidence at an interlocutory stage.

20. Even if the Lands Tribunal has jurisdiction to exclude evidence before trial, I will not exercise my discretion to exclude the 1^st and 2^nd reports at this stage.  In Ko Chi Keung’s case, Chung J said this: -

“When it is clear and obvious that the expert evidence is relevant (or irrelevant), the discretion should normally be exercised in not deferring the determination on admissibility until trial so as to save time and costs and to promote certainty in litigation.  On the other hand, if the relevance (or irrelevance) of the expert evidence is not clear and obvious, the discretion should usually be exercised to defer that issue for it to be raised at trial.”

21. Looking at the Applicant’s contentions carefully, the Applicant is not really saying that the 1^st and 2^nd reports contain materials which are irrelevant to the issues in dispute.  The Applicant is simply saying that those materials should not be put forward by the expert in his reports, as the expert is acting like an advocate and usurping the function of the court.

22. It is indisputable that an expert should not give evidence which is beyond his expertise.  The authorities cited by the Applicant are all good law.  However, as aforesaid, section 10(6) of the Lands Tribunal Ordinance empowers the Tribunal to admit evidence which would otherwise be inadmissible.  It is just a matter of how much weight the Tribunal should attach to such evidence.  If the materials in the 2 reports are relevant to the issue in dispute, I see no reason to exclude them at this stage.  After all, I believe the legal representative of the Respondent would also at the trial make submissions on the law and comments on the items of the surveyor’s bill as the expert did.  So not much time or costs could be saved by excluding the 2 reports.  The Applicant would have to deal with these matters in any event.

23. Furthermore, the Respondent in fact contends that the matters referred to in the 2 reports are within the expertise of the expert.  It would not be appropriate to resolve this dispute at an interlocutory stage.

24. Thus, assuming I have the power to exclude evidence at this stage, I would not exercise my discretion to exclude them now.  I think it is more appropriate to defer the matter to the trial stage.

25. The third ground relied upon by the Respondent is that the Applicant is estopped from challenging the admissibility of the reports because the objection was raised too late.  Part of the alleged irregularities of the 1^st report was spotted by H. H. Judge Chan.  By his letter dated 10^th July 2004, the parties were warned about this matter.  However, both parties have come before H. H. Judge Chan on 12^th July 2004 whereby the Tribunal ordered that the parties’ surveyors were to have joint meeting and to file list of agreed items.  The parties’ surveyors did comply with the order and the 2^nd report was filed pursuant to the order.  The Applicant only took out the present application on 2^nd December 2004.

26. However, I do not think that the Applicant is estopped from raising the application at this stage.  This matter should in fact be raised at the trial.  So the alleged delay in making the application is neither here nor there.

27. As to the fourth ground, the Respondent is saying that the reference to decided cases was to distill valuation principles in order to assess the Applicant’s claim and the expert is not playing the part of an advocate.  So there is no bias on the part of the Respondent’s expert.  As I have already mentioned, this matter should be dealt with at the trial to see whether the expert has gone beyond his expertise.  So the 2 reports should not be excluded at this stage.

28. By reason of the matters aforesaid, I find that the Applicant’s application ought to be dismissed.

29. I therefore order as follows: -

(1)	The Applicant’s application by way of Summons dated 2nd December 2004 be dismissed;
(2)	Costs order nisi: the Applicant do pay the Respondent costs of the application with certificate for counsel, to be taxed on District Court Scale if not agreed.
(3)	If there is no application on costs within the next 14 days, the costs order nisi shall become absolute.