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.