Hong Kong – When Does An Expert Witness Have A Duty To Disclose Disciplinary Proceedings Against Him?

28 October, 2016

 

The Court of Appeal held, in Harvest Treasure Limited v Cheung Fat Enterprises Limited, CACV 67/2016, that an expert witness has a duty to disclose voluntarily the outcome of disciplinary proceedings against him, when he is found guilty of a charge, resulting in a sentence, which curtails his right to practise as a member of a professional body. The mere fact that there are pending disciplinary proceedings against an expert witness does not militate against his professional qualifications, the Court said. Up until the establishment of the charge against him and a sentence of suspension or striking off is imposed, the expert is entitled to practise as a member of that profession, including the giving of expert evidence as such. It is only when the relevant professional body decides the charges against the expert and imposes a sentence which prevents him from practising as a member of that profession that the professional qualification of the expert is subject to qualification. It is at that point in time that paragraph 9 of the Code of Conduct contained in Appendix D to the Rules of High Court (Code) requires the expert to disclose such qualification to his professional qualifications.

 

The Facts

 

The Harvest Treasure case concerned an application for a compulsory sale order in Lands Tribunal proceedings, in which the Applicant retained an expert surveyor. The trial took place in August and September 2015. At the time that the expert prepared his expert report and gave evidence before the Tribunal, there were pending disciplinary proceedings against him, which he did not disclose. 

 

The expert was informed of the outcome of the disciplinary proceedings on 21 August 2015, one day after he had finished giving evidence before the Tribunal. He had been found guilty by the Hong Kong Institute of Surveyors (HKIS) of a charge of giving opinions in his professional capacity that were not, to the best of his ability, objective, reliable and honest. His membership with the HKIS was suspended for one year as from August 2015 and, at the same time, his membership with another professional body remained intact. It was not until seventeen days later, on 7 September 2015, that the Applicant’s solicitors wrote to inform the Tribunal of the disciplinary proceedings and outcome of them.

 

Tribunal’s Ruling

 

The Tribunal held that the expert’s evidence was admissible, notwithstanding late disclosure of the disciplinary proceedings and outcome of the same. The Tribunal further assessed the weight to be attached to the expert’s evidence in light of the absence of voluntary disclosure of the disciplinary proceedings by him prior to 7 September 2015. The Tribunal held that there was no duty on the expert’s part to volunteer information on the disciplinary proceedings up to the time when he finished giving evidence before the Tribunal. The Tribunal further found that he was qualified to give expert opinion evidence, notwithstanding the suspension imposed by HKIS

 

Court of Appeal’s Ruling

 

The Court of Appeal held that the rules as currently set out in the Code do not contain any express provision requiring an expert to disclose pending disciplinary proceedings against him and thus the duty of an expert to disclose disciplinary matters arises only when he is found guilty of a charge and is sentenced in a way which curtails his right to practise as a member of a professional body. It followed that the expert in this case did not owe any duty and therefore could not be criticised for not disclosing the pending disciplinary proceedings against him before he had been informed of the outcome of the same. Upon being informed of the outcome, the Court of Appeal said, the expert had a duty to give disclosure, but although there was a lapse of seventeen days before such disclosure was made, it could not be assumed, the Court said, that the expert had only informed the Applicants’ solicitors on the date when they had made disclosure to the Tribunal.

 

The Court of Appeal recently rejected the Respondent’s application seeking leave to appeal to the Court of Final Appeal

 

Comments

 

This case clarifies whether and when an expert witness has to disclose disciplinary proceedings against him in civil proceedings. Although any failure to disclose pending disciplinary proceedings does not render an expert witness’s evidence inadmissible, it is advisable for an expert to inform the party instructing him and its legal representatives in advance of such pending proceedings, so that the legal representatives can decide on the next step.