Types of Expert Witness

There are generally 2 types of experts as held in the case of PP v Saad bin Mat Takraw by Vincent Ng J, namely:

• Gazette experts, such as the gaming experts appointed by gazette notification under Section 11(6) of the Common Gaming Houses Act 1953
•  Experts that come within the purview of section 45 to 49 of the Evidence Act 1950

As to the qualifications of an expert, an expert must be skilled in his field. He may acquire the skill by special study or by experience.

With regards to this, Suffian LP in PP v Muhamed bin Sulaiman [1982] 2 MLJ 320, 322 (FC) said that: … while the expert must be skilled, he need not be so by special study, he may be so by experience and the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility.

In The Queen v Silverlock [1894] 2 QB 766, identity of handwriting was in question and a solicitor was called to give evidence on it, and Lord Russell CJ said at page 771: “it is true that the witness who is called upon to give evidence founded on a comparison of handwritings must be peritus; he must be skilled in doing so; but we cannot say that he must become peritus in the way of his business or in any definite way. The questions is, is he peritus? Is he skilled? Has he an adequate knowledge?”

Phipson on Evidence , 11^th Ed, says in paragraph 1285: “ The competency of the expert is a preliminary question for the judge and is one upon which, in practice considerable laxity prevails. Though the expert must be “skilled”, by special study or experience, the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility.

Apart from that, all expert witness must as a preliminary issue, provide evidence for qualification to enable the court to consider his opinion evidence.

Hashim J in Wong Chop Saow v PP [1965] 1 MLJ 247: “May I, with respect, suggest that to avoid confusion the expert witness should give his evidence as follows. He should first state his qualifications as an expert. He should then state that he has given evidence as an expert in such cases and that his evidence has been accepted by the courts.”

Abdoolcader FJ in Dato Mokhtar bin Hashim v PP [1983] 2 MLJ 232, 278: Mr. Jagjit Singh complains that Gee has never given evidence in the High Court but we can see no rule requiring this as a prerequisite to accepting him as an expert. He has given evidence, as he said, in the lower courts and even if had not that would not debar him from being accepted as an expert if he could satisfy the court as to his standing, as there is always a first tie for everything. Previous testification in court as an expert witness is no doubt am added consideration but not necessarily the primary consideration for an otherwise qualified person.

In PP v Lin Lian Chen [1991] 1 MLJ 316, even if the expert is a government chemist, evidence of his qualifications must be given. However, it was held that it must be noted that previous testification in court as an expert witness is not necessarily the primary consideration for an otherwise qualified person.

In certain instances, the court may take judicial notice of the fact that an expert has previously given evidence. For example, in Chong Soo Sin (t/a Syarikat Perniagaan Moden) v Industrial and Commercial Insurance (M) Bhd [1992] 1 MLJ 636, Siti Norma Yaakob J held that the fact a person is a consultant chemist registered under the Chemists Act 1975 is sufficient to hold that he has the necessary skill and experience to qualify as an expert.

As per Seah J in Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ 262, 263: Dato Ting claims and I think justly claims that he is conversant with Chinese marriage customary law and particularly the Foochow custom. I take judicial notice of the fcat that Dato Ting has appeared in this court in the past as an expert on Foochow customary law relating to marriage and divorce and his evidence had been accepted without question.

But, how the court determine the competency of the expert? Abdoolcader FJ in Dato Mokhtar bin Hashim v PP [1983] 2 MLJ 232, 278 held that the competency of an expert is a preliminary question and is one upon which in practice, considerable laxity prevails.

Just Who is An "Expert"???

In our everyday conversation, people inadvertently give their input into a topic. It could be facts, or it could even be an opinion. Their opinion would generally have some sort of basis, something that has shaped their opinion. Their principles, Their moral compass, Their religious beliefs, or Their experience. Regardless, we filter through these opinion. Why do we believe some, but not the others. It is human nature, we put our trust into the words of some, but not the other.

In the courts, when one is adducing expert opinion, that expert opinion could change the course of the entire trial. Though the court does not HAVE to accept the expert’s opinion, but where the court has no knowledge on the matter, an expert’s opinion could swing the trial one way or another. So who are these experts? What makes them an expert?

• An expert must be skilled in his field (obviously!)

Mohamed Azmi SCJ in Junaidi bin Abdullah v Public Prosecutor [1999] 3 MLJ 217 considered this issue. The speciality of the skill required of an expert under section 45 of the Evidence Act would depend on the scientific nature and the complexity of the evidence sought to be proved. Therefore, the more scientific and complex the subject matter, the more extensive and deeper the court will be required to enquire into ascertaining the expert’s qualification or experience in the particular field.

BUT, in the final analysis, it is still the trial judge himself as both judge of fact and law to determine the weight to be attached to such evidence notwithstanding the outstanding qualification or experience (or lack of it) of the expert. The lack of qualification or evidence on the part of the expert must necessarily affect the weight of the evidence rather than the admissibility.

On the other hand, where the evidence is of a complex and scientific nature, the absence of both qualification or experience can certainly affect admissibility. 

THERE IS NO HARD AND FAST RULE ON THE ISSUE OF THE COMPETENCY OF AN EXPERT WITNESS.

• The expert may acquire the skill by special study or by experience.

Suffian LP in Public Prosecutor v Muhamed bin Sulaiman [1982] 2 MLJ 320 held that while an expert must be skilled, he need not be by special study, he may be so by experience. The fact that he has not acquired his knowledge professionally goes towards weight not to admissibility. In this case, it was held that a government chemist was qualified by training and practical experience to be a ballistic expert.

In Phipson on Evidence 11 th Edition in para 1285:

“The competency of the expert is a preliminary question for the judges and is one upon which, in practice considerable laxity prevails. Though the expert must be “skilled”, by special study or experience, the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility.”

In Kong Nien Siew v Lim Siew Hong [1971] 1 MLJ 262, a husband petitioned ofr dissolution of his marriage on the sole ground that the respondent wife was incurably of unsound mind. The wife contested the allegations. Chang Pak Hong, a psychiatric nurse gave evidence for the husband petitioner. Despite objection from the counsel for the respondent, Seah J held that Chang Pak Hong is qualified to be an expert within the meaning of Section 45 of the Evidence Ordinance and thus might give evidence.

Another case we can have a look as is  the case of Public Prosecutor v Sam Hong Choy [1995] 4 MLJ 121 where it was held that a Chief Inspector of Police who was also an assistant armourer was competent to give evidence on the serviceability of a pistol as the evidence he gave was not of a complex and scientific nature which would require special skills.

However, curiously in Commercial Union Assurance Co plc v Lee Siew Khuan [1991] 2 MLJ 541 it was held that an advocate and solicitor was qualified by virtue of his knowledge of diamonds to be able to give an assessment of the value of a diamond ring. I would think that though it is not only a jeweler that knows diamonds but the business of an advocate and solicitor is the legal practice. As much as he is familiar with diamonds, it is not his business. 

• The competency of an expert is determined by the court.

The expert must as a preliminary issue give evidence of his qualifications to enable the court to consider his opinion evidence as per Hashim J in Wong Chop Saow v Public prosecutor [1965] 1 MLJ 247. The court may even take judicial notice of the fact that an expert witness had previously given evidence. In Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ 262, Seah J acknowledged Dato Ting as someone coversant with Chinese marriage customary law, particularly the Foochow custom and took judicial notice that Dato ting has appeared in court in the past as an expert on Foochow customary law relating to marriage and divorce and his evidence was accepted without question.

Yet, it is clear in Dato Mokhtar bin Hashim v Public Prosecutor [1983] 2 MLJ 232 that previous testification in court as an expert witness is not necessarily the primary consideration for an otherwise qualified person. However in that case, the expert had never given evidence in High Court but had done so before in the lower courts. 

As per Abdoolcader FJ in that very case “There is always a first time for everything”!

From the cases presented and the judges decision we can see that the competence of an expert is determined by the court with considerable laxity. When the court decided that there is no strict rule, we can see that there really is no strict rule throughout the may cases and the courts have applied their discretion based on the facts as well as circumstance of the case. Though it is rather apparent in cases where there are criminal elements, the courts are not as lax as divorce petitions so forth. The more serious, the more complex and the more the court scrutinize the expert and the expert’s opinion.

A Glance on What is Expert Opinion

Expert opinion is governed under section 45 of Evidence Act 1950. My discussion is inclined more onto academic discussion which hopes to provide a glance and quick understanding on what is expert opinion.

First of all, I would like to apply the illustration given under section 45 in order to give a clear picture that when expert opinion is needed. For instance, when court comes to the question as to whether the death of victim was caused by poison. Then, the opinions of experts as to the symptoms produced by the poison by which victim is supposed to have died are relevant in assisting the judge to reach a decision.

The second example is when there is issue as to whether a certain document was written by A. Then, the opinions of experts on the question whether the two documents were written by the same person or by different persons are relevant to assist the court to decide on the authenticity of the document.

However, we shall bear in mind that there is difference between evidence of fact and evidence of opinion. The primary difference is ordinary rules of admissibility will apply to former but not as to latter because it falls under the category of expert evidence.

I would like to cite what Hobhouse J had said on expert evidence in The Torenia [1983] 2 Lloyd’s Rep 210 which had been applied in Khoo Hi Chiang v PP [1994] 1 MLJ 265, in elaborating on the difference between evidence of fact and evidence of opinion.              

•  First, evidence is adduced which can be described as direct factual evidence, which bears directly on the facts of the case;
• Second, there is opinion evidence which is given with regard to those facts as they have been proved, and then;
• Thirdly, there is evidence which might be described as factual, which is used to support or contradict the opinion evidence. This is evidence which is commonly given by experts, because in giving their expert evidence they rely upon their expertise and their experience, and they do refer to that experience in their evidence. So, an expert may say what he has observed in other cases and what they have taught him for the evaluation of the facts of the particular case. So, also experts give evidence about experiments which they have carried out in the past or which they have carried out for the purpose of their evidence in the particular case in question.”

Expert evidence is important and we cannot expect the judge to know everything. Definitely, there have been some areas which are beyond the experience and knowledge of a judge. Therefore, expert evidence will then be admissible and come into play by furnishing the court with the scientific knowledge to assist the judge.

Abdul Hamid FJ in Syed Abu Bakar bin Ahmad v PP [1984] 2 MLJ 19 had also stated that: “There are however cases in which the court is not in a position to form a correct judgment without help of persons who have acquired special skill or experience on a particular subject, eg when the question involved is beyond the range of common experience or common knowledge or hen special study of a subject or special training or special experience therein is necessary. In such cases, the help of experts is required. In these cases, the rule is relaxed and expert evidence is admitted to enable the court to come to a proper decision.

I also would like to cite the opinion of Yong Pung How CJ in the case of Chou Kooi Pang & Anor v PP [1998] 3 SLR 593, 598:“Further, it is well established that expert opinion is only admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge. If, on the proven facts, a judge can form his own conclusions without help, the opinion of an expert is unnecessary. (R v Turner [1975] QB 834) Thus, a psychiatrist’s evidence was held inadmissible where its purpose was, in effect, to tell a jury how an ordinary person, not suffering from any mental illness, was likely to react to the strains and stresses of life. (R v Weightman (1991) 92 Cr App R 291)

Expert Evidence : Admissible Opinions???

The first thing I learned about Evidence law is that evidence is information by which facts tend to be proved where else the law of evidence is the body of law that regulates the means by which facts may be proved in both the court of law where the STRICT evidential rules are applicable. This STRICT evidential rules includes NO hearsay and NO opinions. One cannot go to court and say "i heard that... or i believe this.... or he/she told me this". 

So the question that arise is how then do we have expert evidence? 

Our society has becomes more intricate and complex, the judges being only human can only know so much, they are faced with more elaborate scenarios as our community continues to develop. Thus, here arises the need for expert evidence. The reasoning is fairly straightforward, because these expert opinions enable the court to come to a proper decision.

Unfortunately an obstacle arises, that is it is trite law that the opinions of third persons are inadmissible. Here is where the delineation between evidences of fact and opinion comes into play. 

If the evidence given is one of fact then the ordinary rules of admissibility applies. If the evidence is one of opinion, then it would come under the category of expert evidence. Here we can refer to Abdul Hamid LP in Khoo Hi Chiang v Public Prosecutor [1994] 1 MLJ 265 who cited Hobhouse J in The Torentia [1983] 2 Lloyd’s Rep 210 when deciding on whether the evidence sought to be adduced would be categorized as expert evidence:

“ First, evidence is adduced which can be described as direct factual evidence, which bears directly on the facts of the case. Second, there is opinion evidence which is given with regard to those facts as they have been proved and then there is thirdly, evidence which might be described as factual, which is used to support or contradict the opinion evidence. This is evidence which is commonly given by experts because in giving their expert evidence they rely upon their expertise and experience, and they do refer to that experience in their evidence. So an expert may say what he has observed in other cases and what they have taught him for the evaluation of the facts in the particular case…”

Therefore, it is rather evident that the delineation between fact and opinion is paper thin.

In Malaysia, Section 45 of the Evidence Act that defines the situations where an expert opinion is admissible. Now, according to that section, the court may consider experts opinion in only four areas which are:

(i)                 foreign law;

(ii)               science;

(iii)              arts; and

(iv)               identity or genuineness of handwriting or finger impressions.

Now that we know where the courts may consider expert opinion, what is the role/weightage of these expert opinions?

In Chou Kooi Pang v Public Prosecutor [1998] 3 SLR 593, it was held that expert opinion is only admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge. This implies that the judge still retains the authority to form his own conclusions. The Court of Appeal of Singapore went on to say that if on the proven facts, a judge can form him own conclusions, without help, the opinion of an expert is unnecessary.

Therefore, it goes hand in hand the understanding that evidence of experts can never go beyond an opinion and can never therefore be of absolute certainty. Such was said by Hashim Yeop Sani J in Public Prosecutor v Mohamed Kassim bin Yatim [1977] 1 MLJ 64, which is an appeal by the Public Prosecutor against the acquittal of the accused in respect of three charges. The prosecution tendered specimen signature of the accused to show that the accused knowingly made false statements separately on tree application forms. Hashim Yeop Sani J held that the proper way to assess the evidence would be to see whether the court could act on such evidence if there was corroboration either by direct or circumstantial evidence. The judge concluded that based on mere comparison of handwriting, must at best be indecisive.

That case may have been specifically addressing comparison of handwriting, but it does establish the fact that expert evidence plays a role as an opinion and that just because an expert gives an opinion, the court is not robbed of its authority to decide on a matter.

In conclusion, with every general rule, there is an exception.
The general rule :NO OPINIONS ARE ADMISSIBLE AS EVIDENCE
The exception    :UNLESS THEY ARE EXPERT OPINIONS. 

But, with all due respect to the experts, an expert’s opinion is essentially still an opinion.