HKSAR v. McCALL HOWARD KENNETH AND ANOTHER

HKSAR v. McCALL HOWARD KENNETH AND ANOTHER

Dr Mak's report and proposed testimony concerning average daily consumption rates were inadmissible because the prosecution failed to prove he was qualified to evaluate and apply the statistical studies he relied on, the report lacked necessary methodological and statistical foundations and failed to demonstrate relevance and applicability to Hong Kong and to non-Chinese defendants, so the risks of admitting the evidence outweighed any probative value under the court's gatekeeping role.

Citation
HKSAR v. McCALL HOWARD KENNETH AND ANOTHER
Parties
Prosecution: HKSAR; 1st Accused: McCALL, HOWARD KENNETH; 2nd Accused: LAM, AROON
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 October 2017
Case Number
HCCC446/2016
Procedural Posture
Criminal / Pre Trial Admissibility Hearing (opinion Evidence)
Outcome
The report and proposed evidence of Dr Mak on consumption rates are excluded and inadmissible against both accused
Legal Topics
Expert Evidence Admissibility, Opinion Evidence, Reliability of Scientific Evidence, Relevance and Applicability of Foreign Studies, Gatekeeping Function of Trial Judge, Use of Consumption Rates to Infer Trafficking
Source Language
EN
Criminal Law Evidence Forensic Psychiatry Expert Evidence Admissibility Opinion Evidence Reliability of Scientific Evidence Relevance and Applicability of Foreign Studies Gatekeeping Function of Trial Judge +1 more

Case Brief

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Parties

HKSAR

Prosecution

McCALL, HOWARD KENNETH

1st Accused

LAM, AROON

2nd Accused

Procedural Posture

Criminal / Pre Trial Admissibility Hearing (opinion Evidence)

Legal Issues

  1. 1 Whether Dr Mak was sufficiently qualified to give expert opinion on drug consumption rates
  2. 2 Whether reliance on Taiwanese and mainland Chinese studies without demonstrated critical evaluation renders the opinion inadmissible
  3. 3 Whether the foreign studies are relevant and applicable to Hong Kong and to defendants of non-Chinese ethnicity

Ratio Decidendi

Dr Mak's report and proposed testimony concerning average daily consumption rates were inadmissible because the prosecution failed to prove he was qualified to evaluate and apply the statistical studies he relied on, the report lacked necessary methodological and statistical foundations and failed to demonstrate relevance and applicability to Hong Kong and to non-Chinese defendants, so the risks of admitting the evidence outweighed any probative value under the court's gatekeeping role.

Court Disposition

The report and proposed evidence of Dr Mak on consumption rates are excluded and inadmissible against both accused

Orders

  • Evidence of Dr Mak relating to average daily consumption rates excluded and not to be admitted at trial
  • Dr Mak's report rejected as inadmissible for purposes of proving trafficking based on consumption rates