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locating evidence and they need not actively engage with the expert witness in court, as the expert witness is infrequently cross-examined by the defendants. As the court-appointed expert has little interaction with the parties, they are more likely to give an objective and unbiased opinion to the Court.

Nevertheless, it is argued that the appointment of court experts under the inquisitorial system is contrary to the principles of the adversarial system of justice. Apart from the loss of right for parties to select their own expert witnesses, there are a number of arguments that go against the inquisitorial court-appointed experts. First of all, the main problem is that the court may place “undue reliance” on the evidence provided by the court-appointed expert, which may lead to an ultimate result that it would be the court-appointed expert instead of the judge who decides the case. [17] This is also highlighted by Lord Denning in In re Saxton that the appointment of a court expert in England is a “rare thing”, as “the litigants realize that the court would attach great weight to the report of a court expert, and are reluctant to leave the decision of the case so much in his hands.” [18]

Second, it is difficult to ensure the validity or test the applicability of the expert evidence in inquisitorial systems due to lack of cross-examination and involvement of more expert opinion, which are fundamental features of the adversarial system. In the absence of challenges to expert evidence, its quality and reliability is therefore doubtful as there is no way to test the correctness of the expert conclusion. [19] Moreover, the exercise of court’s power to appoint an expert is rare under Order 40 of RHC in Hong Kong. It is indicated in the case of Nguyen Ho & Others v. Director of Immigration [20] that the Court of Appeal has declined an invitation to appoint a court expert.

Consequently, the inquisitorial court-appointed expert is difficult to integrate in our adversarial system, especially the important feature of cross-examination which encourages critical scrutiny of the expert evidence is lacking under the inquisitorial system. [21] It is also of my view that the adversarial expertise may benefit the fact-finder in another way by providing a range of perspectives or interpretations that allows verification of the validity and accuracy of the expert evidence in Court.

Problems with small population of potential experts

As Hong Kong is confronted with the problem of parties obtaining “hired gun” experts, [22] the concern of expert bias may also arise when the “employer” of the expert witness is the prosecution. This is particularly the case for criminal prosecutions, where the expert witnesses are commonly and closely connected with the police or prosecution authorities. In fact, the small population of available experts in Hong Kong would render the reliance on expert witnesses “employed” by the prosecution inevitable, for instance, police officers may be called by the prosecution as witnesses to give evidence in drug cases regarding the average dosage of drug addicts…etc. One may nonetheless argue that relying on the prosecution’s own officers as expert witnesses to provide opinion evidence would prima facie cast a doubt on their independence and objectivity in that case. Thus, it raises the problem of whether it is possible to restrict the officers of the