HKSAR v. CHAN YIU SHING AND OTHERS

(Ruling 16)

HCCC 41/2016

[2018] HKCFI 320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2016

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RULING ON EXPERTISE OF EXPERT WITNESS

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1.  At the commencement of the testimony of Chief Inspector Nestor Ngo Yau Lai (PW22, who was previously listed as PW47), a bomb disposal officer who was called to give expert evidence, Mr Douglas Kwok, for D2, resurrected an objection in relation to this witness’s expertise. I had made an earlier ruling addressing Mr Kwok’s grounds of objection as to the expertise of the expert witnesses on 23 February 2017.

2.  Mr Kwok’s objection was a repeat of what was contained in paragraph 3 of his written submission dated 14 February 2017 which reads:

“3.       In any event, it is expressly reserved that even though both PW46 and PW47 may probably have their respective knowledge bases (save and except those areas of chemistry they expressly indicated as going beyond their field of expertise: eg. CB775§4.3.3) to express their opinions on the definitions and classification of explosives or explosive substances (including detonating/deflagrating/pyrotechnic explosives and their effects), it is not admitted by D2 that such opinions forms part of “a body of knowledge sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court” (Archbold Hong Kong 2017, para 10-38 under (b) in the passage extracted).  The reason can be seen from CB 724§21 to 23.”

3.  Mr Kwok by paragraph 3 “reserved” his position as to the opinions of the two experts mentioned although it was not clear in his oral submissions what he was objecting to in relation to PW22’s field of expertise except in very broad and imprecise terms.  The reports of PW22 as far as I can ascertain seek to explain the practical function and application of certain explosives and their effects as is relevant to the present case, and this is a field of expertise that PW22 presents as having as a bomb disposal officer.  As I understood Mr Kwok’s argument, he seemed to be submitting that PW22 does not have the expertise to give an opinion on what a substance is capable of producing or making either alone or with other substances because the wording of section 52 does not cover the capabilities of substances.  Section 52 and 55 of the Crimes Ordinance, Cap 200, read as follows:

“52. Interpretation

In this Part—

“explosive substance” (爆炸品) shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or materials used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement.”

“55. Making or possession of explosive

(1) Any person who makes an explosive substance or, whether or not he knows it to be an explosive substance, knowingly has in his possession or custody or under his control anything which is an explosive substance shall, unless he can show that he made it or has it in his possession or custody or under his control for a lawful object, be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years, and the explosive substance shall be forfeited.

(2) Where in any prosecution for an offence under subsection (1) it is proved that the accused knowingly had in his possession or custody or under his control anything whatsoever, other than premises, containing any explosive substance, then, unless the accused can show that he had reasonable grounds for believing that the thing did not contain anything or contained only something other than an explosive substance, he shall be presumed knowingly to have had in his possession or custody or under his control the explosive substance contained in that thing.

(3) No prosecution for an offence under subsection (1) shall be instituted without the consent of the Secretary for Justice.”

4.  I had difficulty comprehending the point that was being argued by Mr Kwok in his oral submissions.  He deviated from his written ground of objection and mainly focussed on the terms and scope of the offence provision under section 55 rather than the actual expertise of PW22. 

5.  PW22’s fields of expertise deal with the construction and methods of functioning of explosive devices, the effects of explosives and explosive devices, and the identification and disposal of conventional munitions.  He completed a number of courses from 2009 to 2014 dealing with the subject of explosives.  Moreover, he has been a bomb disposal officer at various levels since 2009. 

6.  Mr Kwok accepted that PW22 had the expertise to give an opinion about the interaction of substances but he did not have the expertise to give an opinion about the capabilities of substances as this was a wide field of knowledge. 

7.  I disagree with Mr Kwok’s submissions.  The quoted passage in his written ground of objection is an extract from the judgment of King CJ in R v Bonython (1984) 38 SASR 45 where he sets out two questions to be answered when determining whether expert testimony is permissible.  The quoted extract relates to the second question which calls for the court to decide whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. 

8.  I am satisfied that PW22 has the expertise to give an opinion about the practical function and application of explosives.  It is relevant evidence that goes to the issue of whether the substances the prosecution alleged the defendants variously had, were capable of making explosive substances.  This evidence is relevant to the conspiracy charge in Count 1 where the defendants are alleged to have “conspired together to make certain explosive substances, namely a mixture containing nitrate salts, capable of producing a pyrotechnic effect”.  The charge particularised descriptively the nature and type of the explosive substances that they agreed to make and the effect of such explosive substances.  This evidence is also relevant to the other possession charges in Counts 2 to 5, where it is alleged that the defendant concerned possessed certain explosive substances. 

9.  As suggested by King CJ, where the qualifications of a witness to give expert evidence are in issue, it may be necessary to hear evidence by way of voir dire hearing in order to make a finding as to those qualifications.  This is what happened in this application when Mr Kwok resurrected his written objection, except it was done by submissions before the Court by reference to PW22’s reports without the need to call evidence. 

10.  At the conclusion of the submissions, I ruled against Mr Kwok.  I disagree with his submissions and found that PW22’s expertise fell into a category of opinion which is accepted as a reliable body of knowledge or experience that he was specially acquainted with so as to render his opinion of assistance to the court.  I should add that PW22 in his report has made it clear that his expertise was in relation to the practical function and application of explosives, and where necessary indicated when something was outside his expertise. 

11.  I did not quite follow Mr Kwok’s criticism of section 55 and of the provision of expert evidence on the capabilities of substances as explosives.

Postscript

12.  When PW22 was called to give evidence, PW22 was examined as to his qualifications and experience and Mr Kwok cross-examined him on this area while the other counsel declined to do so.  I was satisfied that he had the requisite expertise in the area in which he was to give opinion evidence.