On 28 January 2019, the Court of First Instance ruled in Sun Cheong Construction Company Ltd v The Incorporated Owners of King Fu, Ho Fu, Ki Fu & Ka Fu Buildings  HKCFI 236, that assessment/survey reports attached to an expert report were inadmissible on the basis that although leave had been given to adduce the expert report, it had not been given to adduce the assessment/survey reports attached to it. The Court pointed out that expert evidence is not only evidence of opinion, but also factual evidence which goes to an expert issue.
Since the trial of the case was due to take place on 13 February 2019, the Defendant applied for an urgent appeal against the decision and the Court of Appeal allowed the appeal on 8 February 2019.
The Plaintiff (Contractor) was engaged by the Defendant (Owners) to repair external walls and internal common parts of the Buildings, and upgrade drainage and water supply systems. The Contractor claimed outstanding costs of works carried out, and the Owners counterclaimed for defective works.
The Court granted the parties leave, under Rules of High Court Order 38 rule 36 (2015 Order) to adduce expert evidence on quantum and, in respect of the Owners’ complaint of defects, on (i) structural engineering, and (ii) infrared thermography.
Pursuant to the 2015 Order, Dr Chan served an expert report, as a structural engineering expert witness on behalf of the Owners. In Dr Chan’s report, he appended a number of “assessment” and “condition survey” reports (Reports) prepared by Wong & Cheng Consulting Engineers Limited (WC) for the Owners prior to the 2015 Order. The Reports referred to the condition of the pipe and drainage system, external walls, concrete structure at various locations, structural condition of the external walls, and water leakage at various locations of the Buildings. The Reports had not been disclosed by the Owners in their Lists of Documents and not dealt with by factual witnesses in their statements.
The Contractor applied to have the Reports excluded as inadmissible evidence, on the basis that leave was never obtained for the Owners to adduce and rely on them as expert evidence.
Court of First Instance (CFI) decision
The Court ordered that the Reports were inadmissible as expert evidence, holding as follows:
Court of Appeal decision
On appeal, the Defendant conceded that the Reports were expert evidence and the only question was whether leave to adduce the Reports had been granted under the 2015 Order.
The Court of Appeal overturned the CFI’s decision and ruled that no separate leave was required on the ground that the CFI’s criticism of Dr Chan’s expert conclusion went to the quality and weight of his evidence, not admissibility. It was apparent from his report that he had some involvement in the tests carried out and the preparation of the Reports.
Regarding the infrared thermography report, since it was not within Dr Chan’s expertise, the Defendant accepted that leave should be sought to adduce such evidence and would not seek to rely on those parts relating to the infrared testing.
The Court of Appeal refused to disturb the CFI’s order awarding costs of the application to the Contractor since the CFI would appear to have been side-tracked by a bad point taken up by the Owners which took up much time in the hearing below.
This case provides useful guidance as to the difference between factual and expert evidence, which is sometimes difficult to distinguish.
It is also a good reminder to practitioners that when seeking leave to adduce expert evidence, if the expert evidence has already been prepared, it should be made known to the Court so that leave given will include that evidence.
Experts should also note that their evidence is given in their personal capacity. As can be seen from the judgment, a limited company could not have any “expertise” or specialist knowledge to proffer as expert witness. We have just seen too many draft expert reports which purported to be prepared by some unknown individuals from a consulting firm.