Bills Committee on the Coroners Bill

Members Discussion

A summary of issues raised by members at the last meeting and the Administration’s response prepared by the LegCo Secretariat was tabled.

2. The Chairman highlighted the main points in the summary and outlined the outstanding matters for further discussion.

3. Mr Y S LEE advised that the English version of the Committee Stage Amendments was in order but the Chinese version was not yet available.

4. Miss Margaret NG noted the Administration’s request for more information regarding her request for a better Chinese version of the list of findings and indicated that she would not pursue the matter. Mr Albert HO observed that not only the Chinese version was unclear but the Court of Appeal case concerning the China Light and Power Limited illustrated the lack of clarity of some of the verdicts. Members agreed to follow-up on the proposal to provide definitions of the findings under item 4 of the summary.

Meeting with the Administration

5. The Chairman proposed and members agreed to follow the order of items in the summary.

Items 1 - Deletion of the words "expeditious" and "economical" from clause 13

6. Members welcomed the Administration’s proposed amendment.

Item 2 - Provision for interested parties to make representations

7. Mr Stephen FISHER briefed members on the Administration’s proposed amendments to clause 27 (Notice of inquest) as set out in his letter of 19 July 1996. A new subclause (2) would be added to require a coroner who had not conducted a pre-inquest review and intended to conduct an inquest without a jury to notify properly interested persons of their right to make representations and a form would be prescribed under the Coroners (Forms) Rules for the purpose.

8. Members agreed that the proposed amendments reflected what they would like to see.

Item 3 - The Legal Aid Department’s policy and practice concerning the granting of legal aid at a coroner’s inquest

9. Mr T E KWONG, Acting Assistant Principal Legal Aid Counsel, attended for this item. He said that under the Legal Aid Ordinance, legal aid could not be granted to an interested person attending an inquest. However, under section 9, the Director had the power to make inquiries. Therefore if an applicant, e.g. a relative of the deceased had applied for legal aid to sue for compensation and if the Director considered that the enquiry would help the applicant’s civil claim, assistance could be provided to allow legal representation at the coroner’s inquest. However, this was not by way of granting of a legal aid certificate but by way of power of enquiry under section 9.

10. Mr Paul TANG referred to members’ concern expressed at the previous two meetings that if there was a coroner’s inquest, legal aid would not be granted and asked Mr KWONG to clarify the policy and practice in this regard.

11. Mr KWONG explained that if a processing officer considered that the case was straight-forward and there were merits, legal aid would be granted without waiting for the conclusion of the inquest.

12. Mr Albert HO pointed out that he had not come across any case to which legal aid was provided before the conclusion of inquest. He therefore asked Mr KWONG whether such assistance had been given before and since there was no authority for the granting of a legal aid certificate, what procedure was used.

13. Mr KWONG said that under section 9 of the Legal Aid Ordinance, the Director had the power to make enquiry and the power to instruct a solicitor or counsel on the Legal Aid Panel to assist in making an enquiry concerning the merits and all matters arising out of an application. With the power under section 9, there was also provision to allow the Director to incur expenses in doing so. They had in the past assisted interested persons in coroner’s inquests, the purpose of which was to determine the merits of the application. Or if it amounted to a conservation of the interest of the applicant, the Director could invoke his power under section 9 and arrange for legal representation for interested persons in a coroner’s inquest.

14. Miss Margaret NG said that members were interested in knowing how often that power under section 9 was exercised, how many times assistance was denied and what were the criteria for denying it. Further, she would also like to know how the power was exercised under section 9, whether it would be exactly similar to representing the interested persons, although not in name, including instructing legal representatives to ask questions at the inquest and when in doing so, what the interested person’s right was.

Adm

15. Mr KWONG stated that under section 9, the first criterion was that it must be for the purpose of an enquiry and secondly it must amount to a furtherance of the applicant’s claim. In response to an example of an industrial accident case quoted by Miss NG, Mr KWONG explained that if there was an inquest and the applicant notified the Legal Aid Department that there was a need to attend the inquest and the Department considered that legal representation would benefit the applicant’s claim, then the Department would consider providing legal representation for attendance at such inquest. He emphasized that where there was an application for legal aid, the Director had to consider all relevant factors and the merits of the case. The granting of legal aid in such cases was not conditional upon whether an inquest was being considered.

16. Mr Albert HO pointed out that for both industrial accident and medical cases, no investigation or medical report was available before the inquest. Therefore when an applicant approached the Legal Aid Department, he or she would be advised to return after the inquest when the necessary information would be available. Members agreed that it was a chicken and egg situation and they asked the Administration to advise on the type of information required by the Legal Aid Department.

17. Mr KWONG said that the Legal Aid Department had in the past granted legal aid even before there was a determination on whether an inquest was to be held. He quoted the examples of the Rambler Channel platform collapse case and the Tseung Kwan O bridge collapse case. He stressed that it was not a must that the inquest had to be concluded before a determination could be made to grant legal aid. The test was whether there was a prima facie case and whether there was sufficient information.

18. The Chairman referred to less blatant cases and asked what happened when relatives applied for legal aid for negligence claims. Miss Margaret NG added that members would like to know how the interest of an interested person might be preserved or prejudiced at the inquest. She pointed out that very often before the inquest there was nothing to go on. Since the inquest was the major point which gave him something concrete, his interest might be prejudiced if he was not represented at that point.

19. Mr KWONG said that there were incidents where if they considered that it was necessary for furtherance of an applicant’s claim, they would provide legal representation. He also pointed out that they would normally offer limited legal aid to carry out pre-action discovery of medical records and they obtained their own medical experts’ reports and also counsel’s advice as to whether there were any merits in the claim and that could very much be independent from whether there would be an inquest or not.

20. Miss Margaret NG said that no counsel could advise on merit without some material and in cases where there was not any material, the counsel was bound to be handicapped.

21. Mr KWONG pointed out that by the time the paper reached the counsel, there would have already been a pre-action discovery against the medical records. There would also be independent medical experts’ reports.

22. The Chairman asked for further clarification whether all applicants were asked to provide medical reports or the like before the Department made the decision. Mr KWONG confirmed that it was their practice to ask for medical reports from the doctors or hospitals concerned immediately. As their request for medical records was normally turned down, they would offer limited legal aid for pre-action discovery against those medical records concerned.

23. Mr Albert HO said that he could not understand the basis for selection of cases and he could pinpoint many other well-known cases for which no certificate was granted. He also pointed out that in many medical cases, if the interested persons were not represented by counsel, their interests could not be safeguarded as very often they were unable to ask the right questions. Therefore he asked Mr KWONG to explain more clearly the basis for accepting or refusing cases.

24. Mr Michael HO followed up by asking Mr KWONG to confirm whether obtaining medical reports/records was a standard procedure.

25. Mr KWONG said that the first thing they would ensure was that the applicant passed the means test. Once that was done, they would automatically obtain medical reports and records from the hospital or doctor concerned. As regards Mr Albert HO’s question, he emphasized that they could not grant legal aid for coroner’s inquests. The test for offering assistance to interested persons under section 9 was whether by doing so it would amount to an enquiry and whether it would lead to a furtherance of the applicant’s civil claim.

26. Miss Margaret NG said that she was puzzled as to how the Legal Aid Department could decide before an inquest was held whether it was going to assist them and if they automatically carried out some sort of enquiry anyway, she considered that being present at the inquest was the most central kind of discovery. She was therefore puzzled why they required some special and uncertain test before they invoked power under section 9.

27. In response to another question raised, Mr KWONG said that if a solicitor made a request to the Director of Legal Aid claiming that his attendance at the coroner’s inquest would amount to the preservation of a client’s interest, the Director might authorize such attendance, depending on the necessity of the solicitor’s attendance and whether such attendance would amount to a furtherance of the applicant’s civil claim.

28. Mr Paul TANG pointed out that there could be a third scenario where the initial information collected was not sufficient to determine whether legal aid could be granted and it was therefore necessary to wait for the conclusion of the inquest.

29. Miss Margaret NG asked under what circumstances would the power under section 9 be invoked in respect of cases on which a decision on the granting of legal aid had not yet been made.

30. Mr KWONG said that there had been incidents in the past where the Legal Aid Department offered legal representation at the Coroner’s Court even at the stage of determining whether legal aid should be granted. That was only possible if it amounted to an enquiry on the part of the Director of Legal Aid in respect of the merits of the civil claim.

31. In response to a question from Mr Albert HO, Mr KWONG clarified that a legal aid certificate would not be granted for representation at a Coroner’s Court. The enquiry to assist the Director of Legal Aid in determining the merits of the civil claim under section 9 was done by separate instructions.

32. The Chairman pointed out that in many cases if legal representation was not provided, it might not be possible to obtain necessary information for furtherance of the claim. He also questioned the basis for determining whether an enquiry under section 9 was needed.

33. Miss Margaret NG said that she heard two contradictory messages. On the one hand members were informed that the present policy did not allow the granting of legal aid for inquest but under section 9 the Director of Legal Aid had certain power to assist the Director, not the applicant. She observed that two situations would arise - if legal aid had been granted, the Director would authorize legal representation at the Coroner’s Court to assist the Director and if legal aid had not yet been granted, a certificate could not be granted for legal representation and any legal representation would be to assist the Director. She found it all very confusing as to whether a legal aid certificate had to be granted first before there could be legal representation for the interested person or whether it was the reverse.

34. Mr Paul TANG clarified that the first situation was that the Director of Legal Aid had already approved the grant of legal aid and if the interested person had to attend a inquest the Director could authorize the counsel to represent or accompany him. In the other situation the Director did not yet have sufficient information to determine whether the applicant satisfied the merits test. Under section 9, the Director could make enquiries or investigations to help determine the grant of legal aid. Basically the provision of legal representation was based on the consideration whether it would help in furtherance of the civil claim.

35. Mr Michael HO asked the Administration to further clarify whether the counsel represented the interested person or the Legal Aid Department at the inquest in the category of cases where a legal aid certificate had been granted. Mr KWONG said that the assigned solicitor’s attendance at the inquest was to safeguard the interests of the interested person for betterment of the civil claim. The expenses would be paid out of a special legal expenses fund for the purpose.

36. Mr Albert HO said that the Administration should be frank in admitting that there was no legal aid for nearly all inquest cases and only in very special circumstances would legal aid be provided. Such frank admission would help members to decide whether policy changes should be made through legislation now or though the Legal Aid Services Council.

37. In addition to the statistics requested by Miss Margaret NG in paragraph 14 above, Mr Michael HO asked for details in respect of the legal expenses fund for attendance at inquest e.g. the amount available, how much had been paid out and the arrangements for considering whether there were sufficient funds. Mr Albert HO asked that in providing statistics, the Administration should provide two categories of cases - medical and industrial accident cases, including the total number with inquests conducted and the number with attendance by assigned solicitors by the Legal Aid Department so that members could compare the figures.

Adm

38. The Chairman concluded the discussion on the issue by pointing out that the statistics to be provided by the Administration would be crucial for deciding at the next meeting whether the question of legal aid should be further pursued now in the context of this Bill or whether the matter should be referred to the Administration of Justice and Legal Services Panel for follow-up in the context of the Legal Aid Ordinance.

Items 4 & 5 - Definitions of the standardized list of findings

39. Mr Stephen FISHER reported that discussion had been held with the coroner after the last meeting. They considered that as Form 11 of the Coroners (Forms) Rules already listed the findings, there was no need to define the findings or else it would be very inflexible. Furthermore, it was clearly stated on Form 11 that the findings were suggestions only and it was up to the coroner and the jury to decide whether to adopt them.

40. Mr Albert HO referred to the Court of Appeal case concerning the China Light and Power Limited and highlighted that even an experienced coroner could make a mistake regarding the definitions of findings. He also pointed out that it was stated in the "Reasons for Judgment" that the English Act contained suggested verdicts and asked why in Hong Kong they were included in the subsidiary legislation instead of the primary legislation. Referring to page 8 of the judgment, he pointed out that there was not much difference between "lack of care" and "neglect", especially in Chinese. He asked the Administration to consider to list the suggested findings and to provide definitions in the primary legislation to make it self-contained. That would help avoid wrong interpretations and reduce the need to refer to case law. He asked the Administration to explain why it could not be done and to advise which Commonwealth jurisdictions had such legislation.

41. Mr Geoffrey FOX explained that a list of findings was already provided at the end of Form 11 and paragraph 4 of the notes to the Form gave guidance to the coroner and the jury. He therefore considered that the notes to Form 11 already gave a non-exhaustive list of common forms of findings and suggested to the coroner and the jury the terminology that should be used based on the UK rules.

42. Miss Sarah WU confirmed that the coroner considered the present arrangement appropriate and judicial reviews had helped to clarify the meaning in case of doubt.

43. Mr Albert HO said that judicial reviews for such purpose should be avoided as far as possible as they were costly and could cause embarrassment as in the China Light case. He therefore asked for simple and easily understood definitions to be provided which would help to distinguish between e.g. death by misadventure and death by accident, the difference was which was not understood by many people. He pointed out that he had not formed a firm view on the matter and examples from other Commonwealth jurisdictions would be useful.

44. Mr FOX advised that from the other four or five coroners statutes that he looked at during the drafting of the Bill, UK was the only one where they set out a list of possible findings. He pointed out that statutory definitions might inadvertently prevent case law from developing. He further emphasized that the suggested findings in the rules made by the Chief Justice were just notes at the end of a form and they had no legislative force. Therefore it was up to the coroner whether to follow them.

45. Mr Albert HO maintained his view that the Ordinance must be comprehensive and comprehensible to the public so far as the meanings of the verdicts were concerned. Though he understood the arguments put forward by Mr FOX, he would like to have information on the situation in Australia and Canada. He suggested that the statutory definitions could be drafted in wide terms and without being exhaustive to serve as guidelines. Mr FOX agreed to provide the information requested.

Adm

Item 6 - Better Chinese translation of the list of findings

46. The meeting noted that Miss Margaret NG had indicated that she would not pursue the matter.

Item 7 - Immediate implementation of the proposal in the new clause 12

47. Mr Stephen FISHER reported that the Judiciary had agreed to implement administratively with immediate effect the proposal for the coroner to comply with requests from interested persons for a copy of any witness statement or medical report in his possession before the inquest.

48. Mr Albert HO asked whether it could be extended to technical reports. Miss Sarah WU undertook to consult the coroner.

Adm

Item 8 - Investigations of deaths reported by the Police

49. The Chairman said that members shared the view that the coroner should have the power to appoint, if necessary, someone from outside the Police Force to help him investigate deaths reported by the Police, for example, a death inside a Police Station. As the Administration had not responded on the matter, he invited Mr Paul TANG to inform members of its position.

50. Mr TANG pointed out that this category of cases was rare and the coroner could carry out his own investigations, with assistance from the Attorney General’s Chambers (AGC) or other professionals if required. He also highlighted the fact that police investigations would be carried out irrespective of the inquest and another group carrying out similar investigations might present problems and could well be counter-productive. The Administration therefore considered that the present arrangements were appropriate and no change was necessary.

51. The Chairman pointed out although such cases were rare, some of them might involve the nucleus of the Police Force and it was not appropriate for the police to carry out such investigations. Mr Albert HO added that the coroner should have the assistance of independent investigators for investigations of police cases.

52. Mr TANG reiterated that in such circumstances the coroner could carry out his own investigation or obtain assistance from others. He might receive a report from the police but he could form his own opinion.

53. The Chairman said that members did not ask for a separate team of investigators under the coroner but would like to know in a situation where the coroner was not satisfied with the police findings or where there was public pressure, whether the coroner had the resources and power to appoint non-police investigators.

54. Mr TANG said that while the coroner did not have any amount set aside for the purpose, he could obtain independent opinions if he was not satisfied with the findings. However, it would be difficult to ask another group of investigators to carry out the same investigations conducted by the police.

55. Miss Sarah WU said that if the coroner found any doubtful points in the death report by the police, he would ask for further investigation to be carried out. Furthermore, police investigations were carried out by another division and were of a high standard.

56. Mr Michael HO said that the pressure would still be there even if investigations were carried out by another division. It was not a question of not trusting the police but it must be seen to be fair or else the public would have doubts about the investigations.

57. Mr Albert HO asked if the coroner was not satisfied with the police investigation or if he considered from the outset that investigations by the police would not be appropriate, whether he could request assistance from the Secretary for Security who could exercise his power to redeploy staff from other departments for the investigation. The Chairman added that members wanted to know whether a mechanism was available to enhance the credibility of the investigations in special circumstances.

58. Miss Sarah WU referred to Rule 8 of the Coroners Rules which provided that the Attorney General might at the request of a coroner appoint a person to be a coroner’s officer to assist the coroner in his investigations.

59. Mr FOX added that if a Crown Counsel was provided to assist the coroner in his investigations and the questioning of witnesses, there was nothing in law which prevent that coroner’s officer from calling upon other assistance whether from the AGC or outside the AGC.

60. Mr Y S LEE invited members’ attention to clause 9 on investigations into deaths and clause 10 on power of entry and search. He pointed out that under clause 10, only police officers could, with a warrant issued by a coroner, enter and search premises for collection of evidence.

61. Mr FOX advised that clause 10 had to be read in conjunction with clause 74 on duties of police force. An amendment had been made to section 10 of the Police Force Ordinance stipulating that the Police Force must assist coroners to discharge their duties and exercise their powers under the Coroners Ordinance. He considered that if a coroner wanted to enter police premises connected with the death of a person and he wanted to bring other people with him e.g. officers from the AGC or another department to look at the premises or some records or files, it was the duty of the Police Force to assist the coroner. If the police refused to do that, they would be in breach of their duty under section 10 of the Police Force Ordinance.

62. Mr TANG stressed that there would be wide implications if another group of people could carry out enter and search duties. Mr Albert HO pointed out that other government officers such as Customs, ICAC and Health Department officers could enter and search premises with a warrant authorizing them to do so. He said that members agreed that 99.9% of cases could be investigated by the police. However, for the very small number of special or sensitive cases, the coroner might not wish to involve the police but the provision in clause 10 did not allow him any choice.

63. Mr Y S LEE observed that the coroner could only base his decision on evidence obtained by the police. The discretion on what to obtain rested with the police and what was collected would affect the outcome.

64. Miss Sarah WU pointed out that the coroner could ask for additional information to be provided and even under existing arrangements, the coroner often took the initiative to make on site investigations and called for specified information.

65. Mr FOX said that clause 12 gave power to the coroner to issue a summons asking somebody to come before him to give evidence and also to bring with him any evidence in his possession. He could exercise this power in relation to any police officer in Hong Kong.

66. Mr Y S LEE elaborated the point he made earlier that, although the coroner had the power to require additional materials, the coroner’s decision would probably be based on the materials collected by the police. If some facts were not given to him, the coroner might not be aware of the existence of such aspects and thus would not be able to give directions for further investigation.

67. Mr Albert HO reiterated that it was necessary to ensure that a mechanism was available to the coroner in special circumstances to appoint non-police investigators and requested the Administration to re-consider the matter.

Adm

Item 9 - Estimated number of reportable deaths

68. The Chairman referred to the Administration’s estimate of around 9,000 reportable deaths and observed that the number might be on the low side and any increase would mean more work for the Forensic Pathologists.

Item 10 - Clause 44 (Costs)

69. Members welcomed the Administration’s decision to delete the clause.

Item 11 - Part 2 of Schedule 1 to the Bill

70. Mr Stephen FISHER pointed out that the proposed amendment differed from the arrangements agreed at the meeting with the medical profession. The Chairman said that he would further consult his constituents regarding the matter.

Chairman

Date of Next Meeting

71. It was agreed that the next meeting would be held on either 29 August at 8:30 a.m. or 30 August at 2:30 p.m. to consider the three outstanding items and to examine the Bill clause by clause. The Clerk would confirm the date.

Clerk

72. There being no other business, the meeting ended at 10:30 a.m.

[Post-meeting note: As the Chairman would be away from Hong Kong, the next meeting was re-scheduled to 11 September 1996 at 10:45 a.m.]

LegCo Secretariat
27 August 1996