HARVEST TREASURE LTD AND OTHERS v. CEUNG FAT ENTERPRISES LTD AND OTHERS

CACV 67/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 67 OF 2016

(ON APPEAL FROM LDCS NO 8000 of 2014)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  We handed down our judgment in this appeal on 15 July 2016, dismissing the appeal. On 12 August 2016, the 1^st Respondent applied by a Notice of Motion for leave to appeal to the Court of Final Appeal. By a summons of the same date, the 1^st Respondent also sought a stay of execution of the compulsory sale order. The latter application was made in light of the intended auction of the property on 26 August 2016.

2.  In the Notice of Motion, the following questions are framed as questions involved in the intended appeal which by reason of their great general or public importance, ought to be submitted to the Court of Final Appeal:

“ Question 1

(1) Having regard to the letter and spirit of the Code of Conduct referred to in Order 38 rule 37C of the Rules of the High Court (Cap. 4A), and having acknowledged that pending disciplinary proceedings by an expert’s professional body may potentially affect the Court’s assessment of his reliability as an expert, whether in a civil matter it is correct as a matter of principle that an expert is not required to disclose any pending disciplinary proceedings against him, but is only required to do so as and when the charge is determined and a sentence curtailing his ability to practise as a member of that professional body imposed against him in such proceedings.

(2) Having regard to the matters set out in (1) above, whether in a civil matter the party who adduces expert evidence is never required to disclose to the other parties to the litigation pending disciplinary proceedings by the expert’s professional body against the said expert; and as a matter of principle, whether the first-mentioned party is only required to do so as and when the charge is determined and a sentence curtailing the expert’s ability to practise as a member of that professional body imposed against the said expert.

Question 2

Whether it is correct as a matter of principle that outside the context of case management where the probative value of the expert evidence has to be considered, the Court has no general power to rule against the admissibility of an expert report; and whether as a matter of principle it is correct that there is “no scope for expunging [the expert’s] evidence on the ground of his breach of duty towards the court or his failure to appreciate such duty.”

Question 3

Whether the party who adduces expert evidence bears the burden of showing that the expert understands and discharges fully his duties to the Court, rather than imposing such burden on the other party(ies) to show that there had been a breach of duty to the Court on the part of the said expert.”

3.  The 1^st Respondent also relied on the “or otherwise” limb in Section 22(1)(b).

4.  We can immediately dispose of Question 2.  It concerns the power of the court to expunge evidence as being inadmissible.  As we have explained in our judgment, at the leave stage (viz when the 1^st Respondent applied for leave to appeal to this Court in March 2016), we did not give leave to challenge the admissibility of the evidence.  Thus, notwithstanding the way in which the question was framed in the Notice of Appeal, admissibility is not a question in CACV 67 of 2016 though we did refer to it by way of reciting the litigation background.  Paragraph 26 of our judgment of 15 July 2016 should be read in this context.  Hence, Question 2 cannot be an issue in the intended appeal.  In any event, notwithstanding his very thorough submissions, we are not persuaded by Mr Ho SC that there is any juridical basis for expunging evidence already admitted simply on the ground that an expert had not fully observed his duty towards the court.  

5.  Coming back to Question 1, we are prepared to accept that they can potentially raise questions of great general or public importance.  However, with great respect, the submissions of Mr Ho were basically arguments we had considered in our judgment.  For reasons already set out in our judgment, we cannot see how the argument based on the Code can get off the ground. 

6.  If one were to refer to common law duties, we have analysed the relevant authorities in our judgment and there is not a single authority supporting the width of the duty of voluntary disclosure as contended by the 1^st Respondent.  Like his predecessor, Mr Ho placed much reliance on HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336.  For reasons explained in our judgment, there is a principled distinction between the duty of a prosecution in a criminal trial and the adversarial contest in civil proceedings.  In a civil case, a judge must exercise greater discipline in case management and collateral inquires with low probative value have to be curtailed.  Hence our reference to the approach in Vernon v Bosley [1994] PIQR 337 at [40] of our judgment.  With respect, despite his submissions, Mr Ho did not succeed in persuading us it is reasonably arguable that the duty of a prosecutor can be transposed onto an expert witness or a party in a civil trial. 

7.  Mr Ho referred to [68] of our judgment as the basis for Question 3.  With respect, we dealt with what had happened in the present case at that paragraph and it should not be extrapolated into a general proposition.  As mentioned, we dealt with the situation where the evidence of the expert had been admitted (with evidence supporting his expertise and independence and observance of the Code).  And it must be clear from the last sentence of [68], and reading it together with [64] to [69], that in that part of the judgment we were dealing with the submission of counsel on non-disclosure of outcome of the disciplinary proceedings by reason of the lapse of 17 days.  In such context, if an opponent wishes to challenge the weight to be attached to his evidence on account of his breach of duty to the court, we cannot see anything wrong in requiring those acting for him to at least challenge such witness by cross-examining on the alleged breach of duty. Examined in that light, Question 3 as framed in the Notice of Motion does not arise in the appeal.

8.  For these reasons, we refuse to grant leave.  We shall also dismiss the application for stay of execution.