SINGH ARJUN by his next friend SINGH ANITA GURUPRIT v. SECRETARY FOR JUSTICE for and on behalf of THE COMMISSIONER OF POLICE AND ANOTHER

DCEO 9/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 9 OF 2011

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REASONS FOR DECISION

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1.  I am given to understand that this is the first case under the Race Discrimination Ordinance, Cap 602 (“RDO”) involving a public authority to go to trial. The case is set down for a 8-day trial, commencing on 7 April 2014.

2.  There were 4 summonses returnable at the pre-trial review on 3 March 2014:

(1)   The summons taken out by the Equal Opportunities Commission (“EOC”) for leave to appear by senior counsel and/or counsel as amicus curiae in these proceedings.

(2)   The plaintiff’s summons for leave to file a supplemental witness statement.

(3)   The plaintiff’s summons for leave to adduce expert evidence in the form of a report by Professor Benjamin Bowling (“the expert evidence summons”).

(4)   The defendants’ summons to strike out a hearsay notice filed by the plaintiff on 18 October 2013 (“the strike-out summons”).

3.  Both sides welcome the involvement of the EOC and the defendants do not object to the plaintiff filing the supplemental witness statement.  As such, what called for determination were just the expert evidence summons and the strike-out summons. 

4.  After hearing submissions, I dismissed both summonses.  These are my reasons.

Background

5.  This case is about what happened to Arjun on 6 January 2010.  He is Indian by race and Punjab by ethnicity, and was 11 years old at the time of the incident.

6.  Put briefly, Arjun was returning home by himself on that day from a tuition class.  He took the Mass Transit Railway and alighted at the Wanchai Station.  As he was walking up the escalator leading from the platform to the ground floor exit, he became involved in a scuffle with a Chinese lady later identified by the parties as Madam Chan.  Police was summoned and a police constable surnamed Hung (“PC Hung”) attended the scene together with other police officers.

7.  Essentially, the plaintiff’s complaint is that:

(a)   PC Hung and other unidentified police officers unlawfully discriminated against Arjun on the ground of race “by refusing or deliberately omitting to provide Arjun with any police services, and/or police services of the like quality and like manner and on the like terms in relation to other members of the public in contravention of Sections 27(1)(a)-(b) and (2)(h)(i) of the RDO”.[1] (my emphasis)

(b)   PC Hung and other unidentified police officers unlawfully arrested and falsely imprisoned Arjun, in that they “failed to take any or any reasonable steps to inform themselves of Madam Chan’s unlawful and false arrest of Arjun and his use of legitimate and reasonable force to resist such a false arrest”.[2]

8.  Arjun is suing by his mother and next friend in this action, and the defendants are the Commissioner of Police and PC Hung.  According to the Amended Statement of Claim (“ASOC”), the Commissioner is being sued in respect of breach of statutory duties and torts committed by PC Hung as agent or servant of the Government.[3]

9.  The defendants deny liability.  It is fair to say that a fair amount of the facts alleged by the plaintiff are disputed.

10.  For present purposes, we shall focus on the discrimination charge.

The expert evidence summons

11.  This summons is concerned with a report prepared by Professor Benjamin Bowling. [4] He is a Professor of Criminology and Criminal Justice at King’s College, London.  He has conducted extensive research in and written books about criminal justice and on policing in particular.

12.  The defendants do not doubt the professor’s expertise.  Rather, they oppose the application on the grounds that:

(1)   the proposed evidence lack relevance and probative value, and is unhelpful for the resolution of the issues in this case; and

(2)   there has been undue delay on the part of the plaintiff in seeking leave to adduce such evidence, and it is said that the current trial dates will be jeopardized if leave is granted.

(a)    Professor Bowling’s report

13.  Professor Bowling was instructed to give an opinion on the following questions:

(1)   Whether police law enforcement powers can be construed as a service.

(2)   What is the best practice in law enforcement and crime investigation.

(3)   Whether racial stereotyping, racial profiling and racial discrimination are likely to have formed any part of the police conduct in relation to this case.

(4)   If so to what extent.

14.  He came back with a 74-page report comprising 331 paragraphs divided into 3 parts.

(b)    Applicable law

15.  It is common ground that in general civil cases, the court has power under its inherent jurisdiction and Order 33, rule 3 of the Rules of the District Court, Cap 336H, to rule on the admissibility of expert evidence before trial.  If 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.  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 consideration at trial.[5]

16.  For proceedings under the RDO, section 73E(5) of the District Court Ordinance, Cap 336, instructs that:

“The Court in the exercise of its jurisdiction under the Race Discrimination Ordinance (Cap 602) –

(a) shall not be bound by the rules of evidence; and

(b) shall inform itself of any matter in such manner as it sees fit, with due regard to –

(i) the rights of the parties to the proceedings therein to a fair hearing;

(ii) the need to determine the substantive merits of the case; and

(iii) the need to achieve a prompt hearing of the matters at issue between the parties.”

17.  Mr Blanchflower SC (leading Mr Earl Deng) for the plaintiff argues that given that section, cases brought under the RDO should be treated differently than those general civil cases coming before the District Court. He says that:

“This is important because the burden is on the plaintiff to prove direct discrimination from circumstantial evidence. If he is denied from relying on Professor Bowling’s evidence at the pre-trial stage and before it can be tested under cross examination, it raises squarely whether the plaintiff is being denied a fair hearing. We therefore submit that the test for admissibility for expert evidence at the pre-trial stage is low. It is only in cases where such evidence is plainly unhelpful should [they] be excluded at the pre-trial stage.”

18.  With respect, I do not see how this formulation is different from the general test applicable to civil cases highlighted above.  It is not suggested that I lack the power to rule on admissibility at an interlocutory stage.  I agree with Ms Ho for the defendants that the touchstones enumerated in section 73E(5)(b) are consistent with the usual assessment of the relevance, probative value and cost-effectiveness of the proposed evidence in determining whether to admit it. 

19.  Referring to those touchstones, the right to a fair hearing generally requires that parties be given a reasonable opportunity to adduce evidence.  But that is not an absolute right.  The primary function and objective of the court is the just resolution of disputes having regard to the substantive rights of the parties.  The focus of any hearing should be on the issues in dispute.  Parties should not be allowed to waste valuable court time and costs on irrelevant matters which will impede on the progress of the case.  The general test, as a test, sets out a minimum threshold requirement of relevancy.  Only if the court is sure at an interlocutory stage that a piece of evidence is irrelevant will the court exercise the discretion to disallow it.  In my view, the special feature of proceedings under the RDO brought home by section 73E(5)(b) is that there may be matters not directly relevant to the issues disclosed by the pleadings but are nonetheless matters that the court may want to be apprised of.  As we shall see later, I have allowed the plaintiff to rely on four academic articles at trial notwithstanding the defendants’ objection.  This is so not because the articles will be probative of whether PC Hung did or did not commit a legally prohibited act but because they provide helpful information on the board social context in which the court will look at the RDO and the facts of this case.  Subject to this extended meaning of relevancy, I do not see why the minimum threshold test should not apply to proceedings under the RDO.

20.  Furthermore, the Legislature has expressed a clear intention that proceedings under the RDO should be dealt with promptly.  As such, no one should be allowed to hold up the proceedings just because he has not been diligent in preparing for his case. 

21.  In my view, all these are consistent with the underlying objectives set out in Order 1A of the Rules of the District Court, Cap 336H.

22.  Therefore, I shall only disallow Professor Bowling’s report if it is clear and obvious that his evidence is irrelevant or unhelpful.  I may also disallow such evidence if its reception will mean that prompt hearing of this case cannot be achieved.

(c)    Relevance and probative value

23.  Ms Ho has summarised Professor Bowling’s report under the following headings.  Mr Blanchflower SC has warned against slicing up the report and, in so doing, missing its main thrusts but is otherwise content with the headings.  In my view, Ms Ho’s headings provide a helpful summary to work on in the ensuing discussion.

(a) An assertion, based on public documents and statements of Hong Kong Police Force (“HKPF”), that all law enforcement activities of HKPF constitute the provision of service.[6]

(b) A generic description of and commentary on the steps involved in a typical investigation of allegations of crime.[7]

(c) Academic discussion of the meanings of concept such as “racial stereotype” and “racism”.[8]

(d) References to research which allegedly shows that ethnic minorities in many parts of the world suffer from racial stereotyping by police forces, and various suggested explanations as to why such “institutional racism” exists.[9]

(e) References to research which allegedly shows that in Hong Kong, the local Chinese population maintains negative preconceptions towards South Asians and discrimination against South Asians persist in various aspects of society.[10]

(f) A lengthy commentary on the facts of this case, including expression of views as to the credibility of the parties’ competing versions of events, and the ultimate issue of whether Arjun was treated less favourably than other persons on the ground of race.[11]

24.  Ms Ho generally criticizes the professor for straying beyond the proper role of an expert witness by donning the mantle of an advocate and advancing his personal views on various legal and factual issues of the case. She comments that the matters addressed in the report are irrelevant and unhelpful for the resolution of these proceedings.

25.  In particular, she submits that whether or not the law enforcement activities of HKPF amount to provision of “service” in terms of section 27 of the RDO is a question of statutory interpretation for the court and Professor Bowling’s opinion is wholly unnecessary and inappropriate.  I agree.

26.  Central to the discrimination charge is the pleading in §5(2) of ASOC that PC Hung is “[r]esponsible for the equal and indiscriminate provision of all police services to the general public, including, but not limited to the prompt and reasonable investigation of criminal complaints, or to arrest, detain and deliver into custody persons suspected of an offence punishable by imprisonment under sections 50, 51, 52 and 53 of the PFO[12].” (my emphasis)

27.  It is said that PC Hung and other police officers owed a duty to Arjun and the general public to provide policing services, which services includes investigation of a complaint; cautioning, arresting, detaining and prosecution of persons reasonably suspected of having committed an indictable offence; provision of special arrangements for children who are in custody; and prompt release from detention or custody of persons suspected to have committed of an indictable offence.[13] Particulars of the alleged discrimination by PC Hung against Arjun have been provided in §§21-25 of the ASOC.

28.  The defendants deny that they provided any service to Arjun.  They pleaded in §6(1) of the Re-Amended Defence (“RAD”) that:

“… the investigation of criminal complaints, or the arrest, detention and delivery into custody of persons suspected of an offence punishable by imprisonment under sections 50, 51, 52 or 53 of the PFO, and the conduct of any law and order enforcement activities by any member of the Police is not, and does not constitute, the provision of police services, or the provision of any services, to the general public or a section of the public or complaints or victims of crime…”. (my emphasis)

29.  Section 27 of the RDO provides that:

“27. Discrimination in provision of goods, facilities or services

(1) It is unlawful for any person (“the first-mentioned person”) concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against another person (“the second-mentioned person”) who seeks to obtain or use those goods, facilities or services –

(a) by refusing, or deliberately omitting to provide, the second-mentioned person with any of them; or

(b) by refusing or deliberately omitting to provide the second-mentioned person with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person’s case in relation to other members of the public or (where the second-mentioned person belongs to a section of the public) to other members of that section.

(2) The following are examples of the facilities and services referred to in subsection (1) –

(a) access to and use of any place which members of the public or a section of the public are permitted to enter;

(b) accommodation in a hotel, guesthouse or other similar establishment;

(c) facilities by way of banking or insurance or for grants, loans, credit or finance;

(d) facilities for education;

(e) facilities for entertainment, recreation or refreshment;

(f) facilities for transport or travel;

(g) the services of any profession or trade;

(h) the services of –

(i) any department of the Government; or

(ii) any undertaking by or of the Government.”

30.  So, one of the main issues in the forthcoming trial will be whether sections 50 to 53 of the PFO set out any “service” to be provided by the police for the purpose of section 27.  I agree with Ms Ho that this is a matter of statutory interpretation for the court.  Professor Bowling’s contention, based on public documents including publications of HKPF, that all law enforcement activities of HKPF amount to the provision of service is wholly unnecessary and inappropriate.

31.  Professor Bowling also provided a generic commentary on the steps which should be taken by police officers in the investigation of a crime.  I agree with Ms Ho that the opinion is so much based on common sense that they are hardly matters which the court would require assistance.  The following example would help illustrate this.

32.  In §23(1) to (2) of the ASOC, the plaintiff complains that:

“(1) PC Hung spoke to Madam Chan first, and after a short exchange of two or three sentences and without further investigation, walked straight towards Arjun and in a loud voice declared that Arjun was under arrest for the assault of Madam Chan. PC Hung, when shouting at Arjun, spoke in the English language and in a manner that was entirely comprehensible, to the effect that Arjun had assaulted Madam Chan and that Madam Chan’s finger was broken;

(2) Immediately after shouting at Arjun, PC Hung and his partner refused to and/or omitted to speak with Arjun’s Mother or Arjun who were attempting to communicate to them in English to explain to PC Hung and his partner that it was Madam Chan who had assaulted Arjun and refused to let him go and that he had tried to escape her by only using reasonable force;”

33.  Underlying these allegations is the assertion that the police vis-à-vis PC Hung had failed to properly investigate Arjun’s complaint at the scene.  This leads to the pleading in §25 of the ASOC that the defendants had refused or deliberately omitted to provide Arjun with policing service.  The defendants’ answer is at §§19(3), 23(6)-(7) & (25) of the RAD, challenging the factual basis of these allegations.

34.  On this dispute, Professor Bowling expressed the following opinion in Part I(ii) of his report:

“17. In my opinion, witnesses should be interviewed at the scene. The initial questioning should elicit a brief account of what is alleged to have taken place.

18. In my opinion, the account taken at the scene should include where and when the alleged incident took place and who was involved or otherwise present. This information is likely to influence decisions made in respect of the following aspects of the criminal investigation plan.

19. In my opinion, most crimes reported to the police are not major incidents and usually the officers who first attends is the only resource that is required. This officer may be the investigator throughout the enquiry. For this reason, it is essential that the initial investigation is undertaken to the highest standard.

20. In my opinion, on arrival at the scene, the initial responding officer should establish whether or not a recordable crime has been committed. Once it has been established that a crime has been committed, the initial police response affords the greatest opportunity to achieve results.

21. In my opinion, a number of fast-track actions should be taken at a crime scene. These actions may be defined as any investigative actions which, if pursued immediately, are likely to establish important facts, preserve or lead to the early resolution of the investigation. The first chance to obtain material may be the last. Identifying these actions during the initial investigation stage produces the most effective outcome. A delay in protecting, preserving or gathering material and information may result in evidence being contaminated or lost.

22. In my opinion, the initial officer taking the report should ensure that sufficient detail is obtained. This should include: (1) Time, date and location of the offence; (2) Contact details for complainant/witness; (3) Property stolen or damaged; (4) Injury; and (5) Situational issues such as the victim’s, suspects or witnesses movements prior to and after the incident.

23. In my opinion, to maximize the possibility of achieving good results, initial officers at the scene need to allow sufficient time to undertake a comprehensive and thorough investigation in the first instance to comply with minimum standards of investigation.

24. In my opinion, initial responding officers should keep an accurate record of the process of investigation with a specific record all actions taken and the result of enquiries.

25. In my opinion, initial responding officers should maintain a contact plan with the victim.

26. In my opinion, initial responding officers should determine the availability of CCTV coverage; and where CCTV footage is available, seize this and book it into the property system.

…

28. In my opinion, in a witnessed crime the reporting officer should where practicable, obtain complainant/witness statements completed with proper care and attention to detail. This is of utmost importance because secondary investigators depend on good quality information and evidence of thorough initial enquiries to provide sufficient information to make good decisions.

29. In my opinion, interviews that are conducted professionally and quality assured can: (1) Direct an investigation and gather material, which in turn can lead to a prosecution or early release of an innocent person; (2) Support the prosecution case, thereby saving time, money and resources; (3) Increase public confidence in the police service, particularly with witnesses and victims of crimes who come into direct contact with the police.

…

31. In my opinion, police officers carrying out interviews with victims and other complainants, witnesses and alleged offenders (especially those who are vulnerable by dint of their age) should undertake to: (1) Listen carefully; (2) Not stop a witness or complainant who is freely recalling significant events; (3) Where it is necessary to ask questions, they should, as far as possible in the circumstances, be open-ended or specific-closed rather than forced-choice, leading or multiple questions;…

32. In my opinion, great care should be taken in interviewing children (whether they are victims, complainants, suspects or witnesses) who are vulnerable by dint of their age…”

35.  With respect, the above is not something that can only be acquired through a course of special duty or experience but a matter of common sense. 

36.  In his submissions, Mr Blanchflower SC says that the discriminatory acts complained of by Arjun in this case flowed from “racial profiling”.  He draws a distinction between discrimination (as a legally prohibited act) and racism (as a social phenomenon), and submits that the court will be assisted by Professor Bowling’s opinion on racism/stereotyping as a social phenomenon in Hong Kong; the objective standards of policing (ie the best practice in law enforcement and crime investigation); and how racial stereotyping, racial profiling and racial discrimination arise in policing.  He stresses that racism is difficult to prove by direct evidence citing Anya v University of Oxford[14] and, drawing on the experience of other human rights tribunals from the authorities he cited, he submits that this court will be assisted by Professor Bowling’s opinion on the racial prejudice suffered by South Asians in Hong Kong as a piece of circumstantial evidence.

37.  On this, I agree with Ms Ho that by the design of the RDO the ultimate question of whether Arjun had been treated less favourably on the ground of race is to be determined by an assessment of the factual evidence in this case.

38.  Section 27 sets out the prohibited act.  It should be read together with sections 4 and 9 which define racial discrimination for the purpose of the ordinance:

“4. Racial discrimination

(1) In any circumstances relevant for the purposes of any provision of this Ordinance, a person (“the discriminator”) discriminates against another person if –

(a) on the ground of the race of that other person, the discriminator treats that other person less favourably than the discriminator treats or would treat other persons;…”

“9. Act done for racial and other reason

If –

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the race of a person (whether or not it is the dominant reason or a substantial reason for doing the act),

then, for the purposes of this Ordinance, the act is taken to be done for the reason of the race of the person.”

39.  Thus, the trial court, apart from deciding on the legal meaning of “service”, will also have to resolve substantial factual disputes in this case in order to determine whether PC Hung had done what he was prohibited to do.  This is a question of fact and I cannot see how Professor Bowling’s opinion on the theoretical and empirical studies on racial stereotyping and institutional racism and whether racial discrimination is prevalent in Hong Kong can assist. 

40.  The professor’s extensive commentary on the disputed facts in this case is certainly usurping the function of the court as trier of fact.  To demonstrate that the professor has overstepped the line, Ms Ho points to §183 of the report in which the professor expressed the view that: “In my opinion, Madam Chan’s statement is an inaccurate account of events.”  In response, Mr Blanchflower SC suggests that the professor may be reflecting on his earlier observation (in §§139 and 140 of the report) that Madam Chan’s statement is contradicted (according to the professor) by the CCTV footage.  In my view, the trial court will be assisted by counsel in the final evaluation of the evidence and does not require any expert’s assistance.

41.  More importantly, it has never been part of the plaintiff’s case that PC Hung’s conduct was part and parcel of systemic or institutionalized racial stereotyping or profiling which is prevalent in HKPF.  As highlighted in the judgment of Johnson v Halifax Regional Police Service,[15] there is a distinction between discrimination and racism in terms of the need for expert evidence:

“… expertise in racism and expertise in discrimination are two different things. Racism is a social phenomenon, discrimination a legally prohibited act. Boards are presumed to possess a certain expertise in the law of discrimination and human rights, but do not necessarily possess expert knowledge in the practices and impact of racism beyond a basic understanding of their dynamics (though obviously a range if knowledge on these topics exists on the part of boards of inquiry). Racisms takes many guises, exists in many different environments and it is studied by a great variety of social scientists using various methodologies. A given board of inquiry is unlikely to be up to date on all this literature, and I would not wish to see [Omoruyi-Odin v Toronto District School Board] cited as a way of cutting off recourse to expert evidence in discrimination cases. One method of providing this evidence to a board is of course simply to submit published works on the relevant matters, but works cannot be cross-examined.”

42.  In the context of the present case, since we are not dealing with allegations of institutionalized racism I do not think Professor Bowling’s opinion would be of assistance.

43.  In the course of his submission, Mr Blanchflower SC has relied heavily on the Canadian cases of Johnson (cited above) and Nassiah v Peel Regional Police Services Board[16] and the local case of Equal Opportunities Commission v Director of Education.[17]  I agree with Ms Ho that these cases are clearly distinguishable. 

44.  Mr Blanchflower SC does not dispute the fact that there were complaints of racial profiling in Johnson and Nassiah.  That is why:

(a) The judge in Johnson considered that:

“Dr Bernard’s testimony on the powerful impact of negative media stereotypes of black males, both on white people and on black men themselves, was especially pertinent. She noted the strong tendencies in popular culture and film to focus on black men as criminals, pimps, uneducated persons, and uninvolved as fathers of their children. Her research has examined the ‘cool pose’ that young black males sometimes adopt in response to these media portrayals, which in turn unintentionally helps to reinforce the stereotypes. The net effect of her testimony was that these negative stereotypes are widely diffused in our culture, so much so that they operate at a subconscious level, and that it requires a considerable amount of training to counteract them. The issue of possible subconscious stereotyping by police officers was a major focus of this inquiry, and I found Dr Bernard’s evidence relevant and necessary to that issue,…

The evidence of Dr Bernard on anti-racism training was both necessary and relevant to the inquiry and it informs my discussion of remedies later in this decision.”[18]

(b) And the judge in Nassiah expressed that:

“the proposed evidence would provide useful context about the meaning and existence of racial profiling (if any) in police investigations in Canada against which I can better understand the circumstances in which it may occur and the factors indicative of it.  In that sense I find the proposed evidence to be relevant and ‘necessary’ using the less strict standard appropriate for a human rights process.”

45.  It is clear that expert evidence was adduced in Equal Opportunities Commission v Director of Education for very different purposes, and that case (in my view) does not support the plaintiff’s contention here.

(d)    Undue delay

46.  The above should be sufficient to dispose of the expert evidence summons, but in deference to the arguments advanced by both sides I should briefly touch upon the issue of delay.

47.  As I have mentioned in the preamble, the trial of this case is due to commence in early April.  Less than two weeks before the pre-trial review (ie on 18 February 2014), the plaintiff took out the expert evidence summons.  I am told that a copy of the substantive report of Professor Bowling was not made available to Ms Ho until the afternoon of 26 February 2014.

48.  The trial is just 5 weeks away.  Ms Ho complains that if the court accedes to the plaintiff’s request, the defendant should be given a reasonable opportunity out of fairness to prepare their own expert evidence in response.  There would normally be a without prejudice meeting of the experts to iron out their differences.  All these will take time and will most certainly derail the trial.  Furthermore, the present estimate of an 8-day trial was based on the state of the evidence at the time of setting down without reference to any expert evidence.  The time allotted would plainly be insufficient for the parties to debate on any additional expert evidence and to deal with the case fully.

49.  Although section 73E(5)(a) provides that this court is not bound by the rules of evidence when it comes to proceedings under the RDO, the admission of expert evidence is not just a matter of evidence.  There is a case management angle to it too.

50.  In Choy Yick Interior Design & Engineering Co Ltd v Lau Chi Lun trading as Chi Hung Construction Eng Co,[19] Lam J (as he then was) said:

“7. I wish to stress that application for expert directions is not a mere formality. It is an integral part of the case management process. As a trial judge, I have seen far too many cases where the lack of proper preparation of expert evidence resulted in unnecessary costs and time spent on evidence which is of no help to the resolution of the dispute. And such wasteful exercise cost the parties a great deal of money, not only in terms of the fees paid to the experts, but also legal costs spent on paying for the lawyers’ reading, understanding of the reports, discussing the matter with the experts and then the time (and costs) of the lawyers explaining and exploring the expert evidence with the judge by way of submissions and the examination and cross-examination of the experts during trial. Very often, it is not only the party responsible for the mismanagement of expert evidence who has to pay such costs, similar costs have to be incurred (at least on an upfront basis) by his opponent.

8. Such wastage is not consistent with the underlying objectives set out in Order 1A Rule 1. Thus, the court, in the performance of its case management duty under Order 1A Rule 4, should give expert directions to avoid the mismanagement of expert evidence. And the parties and their legal representatives have a duty to assist the court in formulating the appropriate directions (Order 1A Rule 3)…

10. In general, expert directions should be fully complied with before the case is set down for trial. The purpose of directing expert meeting and joint report is to narrow down expert issues…

12. Whilst the trial judge may take up these matters at the time of the pre-trial review, sometimes it may be too late to remedy the situation.  There may not be enough time between the pre-trial review and the commencement of the trial to arrange for another joint meeting and the production of a proper joint report.  Moreover, another purpose of the joint meeting and joint report is to facilitate settlement.  With the identification of the real expert issues through these procedures, the parties should be better informed as regards the position they should adopt in settlement negotiations or mediation.  Hence, the earlier they take place the better.”

51.  Ms Ho has cited Wu Chi Man v Moe Fang[20] as an example of the robust approach taken by the court in disallowing late applications for leave to adduce expert evidence which would impact on the trial timetable.

52.  In the present case, the plaintiff’s solicitor has provided an affidavit to explain the lateness of the application.  It is said that leading counsel was engaged in August 2013 who advised of the need for expert evidence.  The plaintiff highlighted his intention to adduce expert evidence in his timetabling questionnaires dated 1 and 29 August 2013.  Counsel indicated to the court at the Case Management Conference (“CMC”) on 5 September 2013 that the plaintiff was minded to call an Associate Professor at the University of Hong Kong as an expert at trial, whereupon the court commented that the trial court might not need the assistance of an expert in making findings of fact and in deciding whether to draw an inference.  The plaintiff’s solicitors than conducted a more extensive search worldwide and eventually identified Professor Bowling.  After reading his CV and holding an internet conference with him on 12 November 2013, a decision was made to engage Professor Bowling.  The plaintiff wrote to the defendants seeking consent to engage the professor as a single joint expert but the defendants refused.  The plaintiff then sought approval from the Director of Legal Aid, and the Director approved the engagement on 29 January 2014.  Professor Bowling was then asked to prepare a report and he managed to render his report on 26 February 2014.

53.  Despite his initial optimism, Mr Blanchflower SC eventually concedes that the trial will most likely be derailed if the court allows the application. In fact he submits that Professor Bowling’s evidence is so crucial to the plaintiff’s case that the plaintiff would not mind putting off the trial. 

54.  I do not think the above provides any justification for the lateness of this application.  This case was commenced in October 2011.  The plaintiff is all along represented by lawyers assigned by the Director of Legal Aid.  A decision whether to engage expert should have been made earlier as a matter of case management.  It should not be deferred until after the case has been set down and senior counsel is instructed to prepare for trial.  More importantly, it does not appear that the plaintiff has sufficiently addressed the concern raised by the court at the CMC before deciding to engage Professor Bowling. 

55.  Trial dates are generally regarded as milestones and immoveable save in the most exceptional circumstances.[21] In the circumstances of this case, I agree with the defendants that there has been undue delay on the part of the plaintiff in intimating his wish to adduce expert evidence at trial and the application, if allowed, would jeopardize the scheduled trial. 

56.  Having said the above however, I should add that I would have exceptionally considered rescheduling the trial in the circumstances of this case had I find Professor Bowling’s evidence to be relevant or helpful.  In my view, section 73E(5) enables me to look at the question of delay more sympathetically.  I would need to balance the competing demands of sub-section (iii) (promptness) against sub-sections (i) and (ii) (fair trial and substantial merits).  Given the relative inexperience of this court in handling racial discrimination claims under the RDO, I would be more inclined to allow relevant or helpful evidence in and let the party that has caused the delay to bear the consequences.

(e)    Disposition

57.  For the above reasons, I have dismissed the expert evidence summons.

The strike out summons

58.  By this summons, the defendants apply to strike out the plaintiff’s hearsay notice dated 18 October 2013.

59.  The purpose of that notice is to place the following academic articles before the trial court:

(a)   Study on Racial Encounters and Discrimination Experienced by South Asians – a report dated 2012 commissioned by the EOC.

(b)   “Ah Cha”! The Racial Discrimination of Pakistani Minority Communities in Hong Kong: An Analysis of Multiple, Intersecting Oppression – an article by Dr Sara Crabtree (Deputy Director of the Centre for Social Work and Social Policy at Bournemouth University, UK) and Dr Hung Wong (an Associate Professor in the Department of Social Work at the Chinese University of Hong Kong) published in the British Journal of Social Work (2012) 1-19.

(c)   Combatting Racial Discrimination in Hong Kong – Case studies identifying and examining the characteristics and effects of direct and indirect discrimination – a paper presented by Ms Vandana Rajwani (a Barrister-at-law and a teaching consultant at the Faculty of Law of the University of Hong Kong) at the Seminar on Anti Racial Discrimination organized by Hong Kong Human Rights Monitor and Oxfam Hong Kong held on 5 September 2004.

(d)   Racial Acceptance Survey Report – by Hong Kong Unison dated March 2012.

60.  Counsel briefly took me through these articles at the hearing.  I notice that these articles are academic studies concerning racism in Hong Kong, touching upon racism against South Asians in particular.  

61.  Ms Ho complains that the plaintiff is attempting to adduce expert evidence by the back door.  Citing Hussain Tanwear v Focus Roller Shutter Ltd,[22] she submits that the plaintiff cannot escape its obligation to apply for expert directions by means of a hearsay notice.  She further complains that the articles are, like Professor Bowling’s report, irrelevant and unhelpful and the defendants will be deprived of an opportunity to cross-examine the makers if they are allowed to be adduced.

62.  In my view, one should approach these articles differently.  Mr Blanchflower SC concedes that they have no probative value on the factual disputes in this case.  Rather, they contain background information about the society we find ourselves in.  This is the board social context in which the court would look at this case. 

63.  Under section 73E(5)(b), the court is empowered to inform itself of any matter in such manner as it sees fit.  This distinguishes this case from other civil cases such as Hussain Tanwear.  In my view, the court will be enlightened by the information contained in these articles and justice requires them to be admitted.  Since they are not case specific, the need to cross-examine the makers falls away.  If the defendants would want to adduce evidence of a similar nature to provide a balanced view to the court, they may do so by consent.  I do not see how the plaintiff can object to that.  At the end of the day, all these background material will be subject to final submission on weight.

64.  I have therefore allowed the articles and dismissed the strike-out summons.

Conclusion

65.  For the above reasons, I have dismissed the plaintiff’s summons for leave to adduce expert evidence and the defendants’ summons to strike out the plaintiff’s hearsay notice.

66.  I have also heard submissions on costs.  Both parties have asked for costs for successfully opposing the other side’s summons.  Mr Blanchflower SC more or less submits that costs should follow the event, and Ms Ho argues that the lateness of the expert evidence summons constitutes special circumstances justifying a costs order against the plaintiff. 

67.  In my view, I should order each party to bear its own costs save that the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.  First, these summonses are quite independent of the action and, now that they have been disposed of, I should also make a decision on costs. Secondly, ordering costs to follow the event is merely an option for interlocutory applications in general civil cases.  It may not be appropriate in view of section 73E(3) of the District Court Ordinance.  Rather, the starting point should be for each party to bear its own costs unless the proceeding is malicious or frivolous or that there are special circumstances warranting a costs order.  The defendants would have objected to Professor Bowling’s evidence even if the application had been taken out earlier.  Ms Ho is not suggesting that the application was made maliciously or frivolously.  In any event, I have explained above that lateness of the application turns out to be not decisive. In my view, there are no special circumstances justifying a costs order. 

68.  I thank counsel from both sides for their able submissions.