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opinion”. [9]

Another reason for lack of objective expert evidence is due to the problem of “expert shopping”, which is a process of selecting opinions from one expert after another, until the most favourable opinion to the party’s case is found. [10] Since the choice of experts lies with the parties, the expert evidence is selected on the basis that would serve the best interests of their client’s cases. Consequently the court does not necessarily obtain the most independent or objective expert evidence. The practice of selecting the “most favorable expert” is indeed a distortion of the rationale behind expert evidence as well as a discredit to the administration of justice.

2.1 The duties of expert witness

Due to the concern about the failure of experts to provide an independent and objective opinion, a developed code of conduct has been set out in National Justice Compania Naviera SA v. Prudential Assurance Co. Ltd. (The Ikarian Reefer) [11] to clarify the duties of an expert witness. The most important parts are the first two numbered paragraphs, which stated that: “1) Expert evidence presented to the Court should be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation [12] ; 2) An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise [13] .” The Ikarian Reefer guidelines remain a good law in Hong Kong, and the relevant principles were set out in paragraph L1/58/7 of Hong Kong Civil Procedure 2009. The expert witness’s “overriding duty” to provide independent and unbiased assistance to court is also reflected in Order 38, rule 35A of the Rules of the High Court (RHC) as well as the Code of Conduct for Expert Witness in Appendix D of RHC. Further guidance is provided in Hong Kong Air Cargo Terminals Ltd. v. Commissioner of Rating and Valuation [14] that an expert also needs to ensure no omission of material facts that could divert from his concluded opinion.

Although the adversary system may not have provided an ideal environment for the expert witnesses to maintain their independence and objectivity from their clients, I believed that the promulgation of code of conduct would have raised awareness of the expert witnesses in meeting the court’s expectations, so that they will be less easily manipulated by lawyers, which can tend to rein in the “widespread” problem of expert bias in Hong Kong.

Court-appointed experts

Apart from a code of conduct for expert witnesses, some commentators have recommended other ways to reduce the problem of expert bias, and one of them is the appointment of court experts with reference to the inquisitorial system. It is common for the court to appoint experts in many continental jurisdictions, such as Belgium, Germany and France. Unlike the way to appoint experts under the adversarial system, the expert witnesses are selected and remunerated by an independent authority, usually the court rather than the parties, which may avoid the problem of adversarial bias. [15] Take an example of the French system of expertise, the judge would normally commission the expert witnesses from a list of official experts, and they will be questioned by the judge. [16] The major distinction between the adversarial and inquisitorial system of justice is that the parties play a minimal role in