LegCo Paper No. CB(2) 438/96-97
[These minutes have been seen
by the Administration]
Ref: CB2/BC/22/95

Bills Committee on the Coroners Bill

Fourth Meeting on Tuesday, 18 June 1996 at 10:45 a.m. in Conference Room B of the Legislative Council Building Members present :
    Dr Hon LEONG Che-hung, OBE, JP (Chairman)
    Hon Michael HO Mun-ka
    Hon Albert HO Chun-yan
    Hon Margaret NG
Members absent :
    Hon Ronald ARCULLI, OBE, JP*
    Hon James TO Kun-sun#
Public officers attending:
    Mr Paul TANG
    Deputy Director of Administration
    Mr Stephen FISHER
    Assistant Director of Administration
    Mr Geoffrey FOX
    Senior Assistant Law Draftsman
Clerk in attendance :
    Ms Doris CHAN
    Chief Assistant Secretary (2)4
Staff in attendance :
    Mr LEE Yu-sung
    Assistant Legal Adviser 1
    Mr Alfred CHAU
    Senior Assistant Secretary (2)4

Members’ discussion

The Chairman referred to the responses from the Administration and pointed out the following items which required further clarifications:

  1. the criteria to guide a coroner in deciding whether an inquest should be held with or without a jury;
  2. whether legal aid services would be extended to inquests; and
  3. procedures involving a report of death to the Police.

Meeting with the Administration

Coroner’s decision on an inquest

1.At the request of the Chairman, Mr Stephen FISHER referred to his written reply of 8 June 1996 and outlined the circumstances where an inquest would be held with a jury, namely,

  1. Where a person died while in official custody; and
  2. Where the verdict of the inquiry might lead to the arrest of a person and the institution of criminal proceedings against him.

He added that references were also made to overseas practices. Although he understood that making recommendations on technical problems might present difficulties to a jury at an inquest, Mr Albert HO was aware that the coroner and a jury would normally come up with the same verdict and asked why it was so difficult for them to decide on the verdict. Mr FISHER explained that a jury was expected to understand the details of the case and to make recommendations upon completion of an inquest. For complicated cases, it would be time consuming to explain legal and technical points to a jury. Experience had also shown that a jury might not be able to make useful recommendations.

1. Mr Albert HO pointed out that a jury was supposed to understand the inquest as a layman. If the inquest was held in such a way that the jury did not understand it, it would defeat the purpose. In most cases, the coroner would guide the jury to come up with a verdict and recommendations from a layman’s point of view. The Chairman agreed with Mr Albert HO and considered that the length of time involved should not be a crucial factor in deciding whether a jury was needed. He opined that the jury should be guided to take account of all circumstances surrounding a death when a verdict and recommendations were made even though it might take a longer time to complete. In reply, Mr FISHER pointed out that a coroner’s court was different from an ordinary court. The objective of a coroner’s court was to determine the causes of death and to make recommendations. Time was important in that most of the witnesses were professionals and it would not be fair to waste their time. It took time to explain everything in detail to a jury. The coroner should therefore be given the discretion to decide whether or not to sit with a jury.

2. Mr Albert HO argued that at least family members of the deceased should understand, and as laymen they were no different from a jury. He requested the Administration to spell out the criteria to be used by a coroner in deciding whether an inquest would be held with or without a jury. He was not satisfied with the existing arrangement as there was no provision for interested parties of an inquest to make suggestions and representations. In reply, Mr FISHER agreed to discuss the issue further with the Judiciary. Mr Paul TANG reiterated that the presence of a jury at an inquest was to assist the coroner to find the causes of death. Should the coroner decide that a jury might not assist in this respect, a coroner might recommend to hold an inquest without a jury. Responding to further questions from Mr Albert HO, Mr TANG explained that in some cases, such as a death in official custody, an inquest with a jury would be necessary because of the serious nature and government’s accountability. For other cases, a coroner might consider the seriousness of the case, the expectations of the public and the effects of the verdict on subsequent prosecutions and related issues. The Chairman pointed out that it was very important that an inquest should be seen as just and fair and there should be clear criteria for deciding whether a jury was required. Mr Geoffrey FOX suggested that instead of spelling out the criteria, it should be stated that the coroner had to be satisfied that it was just, expeditious and effective to hold the inquest without a jury and that would be a significant constraint on the coroner. As regards requests and representations from interested parties, Mr FOX opined that provisions might be introduced so that coroners had to take into account those representations before a decision was made. As regards whether a coroner’s decision was reviewable, Mr FOX said that under the present law, a coroner would decide whether an inquest would be held with or without a jury as he thought fit. Miss Margaret NG suggested that a coroner’s decision should be reviewable and that objective criteria should be introduced to guide a review on such a decision. Mr FOX summarized members’ requests as follows:

  1. Interested parties might make representations to a coroner at the pre-inquest stage on whether an inquest should be held with a jury or without a jury;Adm
    Adm
  2. Some restraint on the present unfettered discretion of the coroner to decide whether or not to hold an inquest with a jury should be introduced; and
  3. The coroner’s decision should be subject to review by the High Court.

He undertook to consult the Judiciary regarding the proposals.

Legal aid for inquests

3. Mr Paul TANG explained that legal aid was not extended to inquests because an inquest was different from ordinary judicial proceedings in that the objective of an inquest was to determine the causes of death. It was therefore not appropriate to provide legal aid for attendance at inquest. Mr Albert HO disagreed and pointed out that inquests were serious judicial proceedings and it was important that family members of the deceased understood the causes. He considered that legal representations for interested parties in an inquest might affect the outcome of the inquest which in turn would affect subsequent legal actions. The Chairman agreed with Mr Albert HO and highlighted the serious nature of inquests. Miss Margaret NG considered it important that legal aid should be made available to coroners’ courts and suggested that the issue should be discussed with other issues such as legal representation for children in Care and Protection Orders in the Legal Aid Services Council about to be established. Mr Albert HO added that consequential amendment through Committee Stage Amendment was a possible alternative as far as amendments of related legislation were concerned. The Chairman requested the Administration to consider whether consequential amendment was a viable option. Mr Paul TANG pointed out that as the issue was more related to the policy on legal aid, it was not advisable to deal with it in this Bill. He further clarified that he did not imply that inquests were not important, but had reservation regarding the extension of legal aid to the coroners’ court because of the different nature of the proceedings involved. He pointed out that in some circumstances where legal aid had been granted for civil proceedings arising from the death of a person, the Director of Legal Aid could provide assistance to interested persons attending such inquests if he considered that it would help in furtherance of the civil claim. Mr Albert HO said that based on his experience, legal aid would not be granted to proceedings involving inquests. He also pointed out that no matter how complicated the issues involved in a particular inquest were, the experts should explain them to all parties present at the inquest including the jury, lawyers, relatives and interested parties, in layman’s terms so that they could understand them. The Chairman agreed with Mr Albert HO and said that it was not acceptable for a coroner to hold an inquest without a jury simply because complicated issues were involved. He further requested the Administration to clarify whether legal aid would be granted to proceedings involving inquests. Mr Albert HO requested and Mr FISHER agreed that the Legal Aid Department would be asked to provide the Panel with a written reply on the current practice of providing legal aid to proceedings involving inquests. At the request of Miss NG, Mr FISHER also agreed to provide information on current practices regarding the provision legal aid for attendance at coroner’s courts in the United Kingdom (UK) and other Commonwealth countries.Adm

4. Regarding the extension of legal aid to inquests, the Chairman said that he hoped that the Administration of Justice and Legal Services Panel would also consider the issue. Miss NG suggested and Mr TANG agreed that the written reply on legal aid should be detailed and comprehensive with figures on the number of cases and the reasons why legal aid was not available for inquests.Adm
Adm

Administrative procedures of reporting deaths

5. The Chairman commented that the reply dated 3 June 1996 from the Administration was over-simplified in terms of administrative procedures, and was worried that the lack of detailed procedures might cause disruption of work at hospitals. Mr FISHER replied that if a person died in a hospital, it was expected that the corpse would be sent to the mortuary at the hospital and to report the case to the Police. If a person died at home, the doctor who signed the death certificate would report the case to the Police. Mr FISHER added that the current procedures would remain the same after the Bill was passed into law.Adm

6. Referring to the list of verdicts in the letter dated 8 June 1996 from the Administration, Mr Albert HO asked whether the list was exhaustive, and whether a coroner could give verdicts not on the list. In reply, Mr FOX said that it was a list of verdicts adopted from the UK suggesting to the coroner possible causes of death, and a coroner and a jury might decide on causes of death other than those on the list. They were suggestions in note form at the end of a form which would be filled out by the coroner as the normal appropriate forms of verdict that could be concluded but at the same time not dictating that the coroner must find one of the verdicts. Mr FOX undertook to look up more information about verdicts in UK and to advise the Panel.

Rights of interested parties prior to an inquest

7. Mr Albert HO pointed out that currently relevant papers, in particular technical reports, were not available to interested parties prior to an inquest. As a result, solicitors were not be able to study them before the inquest or to seek experts’ opinions if necessary, or to suggest to the coroner to obtain other experts’ advice. He therefore suggested that the Bill should include provisions for interested parties to have knowledge of what witnesses would be called, and the chance to read the reports before the inquest and to suggest what other witnesses should be called.Adm

8. In reply, Mr FISHER stated that as the proposals were related to how an inquest should be conducted, he would consult the Judiciary regarding the matter.

9. Miss NG understood that the present objective of an inquest was to determine the causes of death with the assistance of interested parties, and suggested the Administration to review some fundamental issues of the Bill, such as policies and objectives, so as to reflect the rights of interested parties through appropriate amendments.Adm

10. Mr Michael HO added that appropriate amendments should be made to the Bill to ensure that a sense of fairness would be perceived by all interested parties. The Chairman opined that the role of coroner’s courts should be reviewed to determine whether its scope and terms of reference could be expanded. Mr FISHER agreed to consult the Judiciary on these suggestions.

11. Miss NG reiterated the importance of a review on policies related to coroner’s courts and Mr Albert HO added that a review of the administrative procedures was also important to reflect the rights of the interested parties in those procedures. He further illustrated his point with concrete examples. The Chairman asked the Administration to consider the relevant policies and principles as well. In response, Mr Paul TANG said that the Bill was principally aimed at introducing changes to reportable deaths so that coroners could fully carry out their duties. He observed that the suggestions made by members were much broader than the scope of the changes intended and more time would be needed to examine them in detail. As a result, it would delay the passage of the Bill. He therefore suggested that the fundamental changes, such as a review of the role of a coroner’s court and its functions and responsibilities should be dealt with at a later stage. Mr Albert HO said that after the long delay in bringing forth the Bill, the Administration should not hint that members’ suggestions would delay the passage of the Bill. He pointed out that members had been very cooperative in bringing out all the important issues in these four meetings so far. He also pointed out that the Bill and Law Reform Commission (LRC) Report constituted a complete review of the coroners’ system with a view to bringing about improvements and therefore every aspect including its operation should be examined rather than just focusing on reportable deaths. He also indicated that the Bills Committee need not follow every single recommendation by the LRC. He stressed that members’ suggestions were aimed at a just, fair and open system and did not in any way affect the nature of the coroners’ system. Mr TANG reminded members that the LRC’s recommendations were drawn up after detailed deliberations and consultations. Though he recognised that it was not necessary for members to follow all the recommendations, he envisaged that deliberations on members’ suggestions would take a long time and therefore would delay the passage of the Bill. Mr FOX remarked that under no circumstances would the Judiciary be prepared to accept changes to the Bill whereby the coroner would have any role in determining anybody’s civil or criminal liability. To clarify the matter, Miss NG explained that because there were civil liabilities to be decided later on, it was important to preserve certain things in the coroner’s hearing so that these things did not get lost. That was the very opposite of inviting the coroner to decide on anything like civil liability. However, if the coroner conducted the hearing in a certain manner, he might prejudice the interest in terms of civil liability of certain parties. The discussion had come to the point whether it should be recognised that different parties before the coroner might have interests and whether a further step should be taken to ensure that these interests were preserved by making sure that they were properly represented and that they understood the procedures. However, the Administration had pointed out the provision of legal aid was out of place as it was a court of enquiry. Members considered that if they could not discuss legal aid for coroner’s hearings without going into the nature of such hearings, then they had to go into the nature. The Chairman suggested that a new and all-inclusive Bill should be produced. Mr Michael HO pointed out that both the rights of a coroner and the rights of interested parties to present evidence at an inquest should be expressed clearly in the Bill. Mr TANG and Mr FOX noted that the role and the nature of coroners inquests would be maintained and would consider the proposals aiming at enhancing the interests of parties involved.Adm

Other Questions

12. The Chairman invited members to present their questions to the Administration and asked whether the establishment of the coroner office was sufficient to support the increasing workload.

13. Mr Albert HO noted that the rank of coroner was lower than that of magistrate and wondered whether the rank was appropriate. He understood the objective of inviting witnesses to coroner’s court was to assist the court to find the causes of death and asked why clause 44 concerning costs was included to fine those who failed to be present. He also inquired whether Chinese could be used in coroners court; and the implications of clause 48 regarding the responsibility of the coroners.Adm

14. Regarding the CSAs, the Chairman requested the Administration to respond on the following:Adm
  1. to clarify the meaning of major operation and to consider whether major operations for resuscitation should be exempted; and
  2. to explain the rationale for the different procedures for persons in charge of hospitals and medical practitioners.

Date of Next Meeting

15. The next meeting would be held on 16 July 1996 at 8:30 a.m.

16. The meeting ended at 12:35 p.m.

LegCo Secretariat
25 September 1996

* away from Hong Kong
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Last Updated on 10 December 1998