Wilmes Franz Josef v. Coroner, West Kowloon Court

HCA 1915/2019

[2021] HKCFI 462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1915 OF 2019

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Before: Hon Coleman J in Chambers (Open to Public)

Date of Hearing: 23 February 2021

Date of Judgment: 10 March 2021

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J U D G M E N T

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A. Introduction

1.This is an appeal from the order of a Master acceding to the application made by the defendant (“Coroner”) to strike out the claim brought by the plaintiff (“Mr Wilmes”) and to dismiss the action, on the grounds that the claim discloses no reasonable cause of action and/or it is frivolous or vexatious and/or it is otherwise an abuse of the process of the Court.

2.The appeal arises in the following procedural context:

(1)  From commencement of these proceedings, Mr Wilmes has at all times acted in person.

(2)  The proceedings were commenced by writ dated 18 October 2019, on which the endorsed statement of claim referred to Mr Wilmes’ attached affirmation of the same date.

(3)  Acknowledgement of service was given by the Coroner on 31 October 2019.

(4)  By summons dated 1 June 2020, the Coroner applied to strike out the claim, and for an order that the action be dismissed entirely.

(5)  The gap in time between the acknowledgement of service and the strike out summons is explained by agreed and ordered extensions of time within which the Coroner might have filed a defence.  It will be necessary later in this Judgment to review events in that period.

(6)  On 22 June 2020, Mr Wilmes amended the writ and statement of claim without leave.  The amended statement of claim (“ASOC”), whilst actually endorsed on the amended writ, continued to refer to the previous description of causes of action said to be contained in Mr Wilmes’ affirmation dated 18 October 2019, and made reference to further documents appended to another affirmation dated 22 June 2020.

(7)  On 24 June 2020, Master SP Yip gave leave to the Coroner to amend the strike out summons, so that it sought to strike out the amended writ and ASOC.  Directions were also given for filing of evidence, and for the substantive argument on the amended summons.

(8)  The Coroner filed an affirmation dated 22 June 2020, and Mr Wilmes filed a further affirmation dated 16 July 2020.

(9)  On 8 October 2020, Master Phoebe Chan heard the substantive argument, at the end of which she ordered the claim to be struck out and the action to be dismissed.  Mr Wilmes was ordered to pay the Coroner’s costs on a party and party basis, to be taxed if not agreed.

(10)  By Notice of Appeal dated 22 October 2020, Mr Wilmes appealed from the order of the Master.  However, no grounds of appeal were specified on the Notice of Appeal.

3.I heard the substantive argument on the appeal on 23 February 2021, with the benefit of written submissions filed by Mr Wilmes and by the Coroner prior to the hearing.

4.This is my Judgment on the appeal.

B.     Background to the Proceedings

5.Sadly, Mr Wilmes’ wife (“Mrs Wilmes”) passed away on 19 April 2018 at the Queen Mary Hospital (“QMH”).

6.Mrs Wilmes had had a history of breast cancer with multiple metastases.  On 9 March 2018, she was admitted to QMH due to shortness of breath and was found to have right pleural effusion. Pleural drainage was carried out on 13 March 2018 and analysis of the pleural fluid revealed adenocarcinoma.  She also developed acute renal failure, leading to left uretal stent and the insertion of bilateral percutaneous nephrostomy tubes.  On 17 March 2018, she vomited and developed desaturation and fever, and was intubated.  Multi-bacterial strains were found in her endotracheal aspirate.  A suggested tracheostomy was rejected by Mr Wilmes, and Mrs Wilmes’ condition deteriorated until she passed away on 19 April 2018.

7.The initial cause of death stated by Dr Wong Kin Chung on the Form 18 Death Certificate was “aspiration pneumonia with underlying metastatic breast cancer”, but it was subsequently amended to remove the word “aspiration”.  The amendment is part of what has raised issues and queries from Mr Wilmes.

8.On 25 April 2018, the QMH made a ‘Report to the Coroner of A Death’.  The Report stated the reason for reporting the case to the Coroner was because of “uncertain cause of death (disputed by husband)”. I shall return to what Mr Wilmes says about that – see below.  The Report also requested a post-mortem examination.

9.On 27 April 2018, the Coroner made an order to the Pathologist (“Dr Beh”) at QMH Mortuary to perform an autopsy on the body of Mrs Wilmes.  Further, on 11 May 2018, the Coroner directed the police to conduct an investigation into the death of Mrs Wilmes and to compile a Death Investigation Report.

10.Mr Wilmes sought to challenge the autopsy order, and commenced two sets of proceedings, HCMP 901/2018 and HCAL 1413/2018. Both challenges were refused by Andrew Chan J.  The autopsy was performed on 8 October 2018.  Dr Beh issued the autopsy report on 10 January 2019.

11.It is fair to say that in various correspondence between Mr Wilmes and the Coroner, Mr Wilmes made requests for a number of documents and other information.  The Coroner says that the current proceedings arose from the series of request for information and/or documents, but Mr Wilmes says that is a mischaracterisation of the underlying complaint giving rise to these proceedings.

12.The autopsy report and various other records were provided to Mr Wilmes on 5 March 2019.

13.A Preliminary Death Investigation Report (“DI Report”) was received by the Coroners’ Court on 24 June 2019.  On 27 June 2019, the Coroner instructed the Police to obtain an independent medical expert report to comment on the causes and circumstances leading to the death of the deceased.

14.After the Coroner had informed Mr Wilmes on 17 October 2019 that the DI Report could only be provided to him after decision whether to hold a death inquest had been made in accordance with section 13 of the Coroner’s Ordinance Cap 504 (“Ordinance”), and that other information or documents requested could not be provided as they fell outside the ambit of section 13, Mr Wilmes commenced the present proceedings on 18 October 2019.

15.In correspondence starting in February 2020, an extension of time was sought and agreed for the Coroner to file his Defence. From the correspondence on behalf of the Coroner, it is apparent that the requests for extension of time were in part to facilitate the Coroner’s decision-making as to whether or not to hold an inquest, and in part the consequence of the closure of the court registries in light of them public health concerns.  During the last agreed extension, which Mr Wilmes appears to have considered would include a general standstill on all activity by the Coroner, the Coroner went ahead to conclude his decision on whether or not to hold an inquest.

16.Indeed, on 12 May 2020, the Coroner decided not to hold an inquest into the death of Mrs Wilmes.  In reaching that decision, the Coroner considered the autopsy report and the report prepared by the independent medical expert Dr Chan Chi-mui Miranda (“Dr Chan’s Report”), the medical history of Mrs Wilmes and circumstances of her death.  The Coroner found “pneumonia” to be the direct cause of death and “metastatic adenocarcinoma” as the intervening cause of death.  The Coroner concluded that Mrs Wilmes died of natural causes, so that it was not necessary to hold a death inquest into her death.

17.On 19 May 2020, copies of the DI Report and Dr Chan’s Report were provided to Mr Wilmes.

18.During the last granted extension of time within which to file a Defence, the Coroner issued the strike out application.

C.     Mr Wilmes’s Claim

19.As indicated, the claim as originally formulated was set out in Mr Wilmes’ first affirmation, which was stated to be in support of an urgent ex parte application to issue a mandatory injunction to order the Coroner to provide Mr Wilmes with information described in his earlier letter to the Coroner dated 4 September 2019.

20.The affirmation also said that the letter and various other documents:

(1)  highlight the claim that the Coroner was then misusing his discretionary powers insofar as he was unnecessarily withholding essential information from next-of-kin/properly interested party prior to his further ruling on the case; and

(2)  in doing so, he potentially limited the extent of evidentiary details which may be pivotal in the decision-making, and so enable himself to base future ruling on irrelevant, skewed and incomplete information.

21.Those complaints were stated to justify making the urgent application, since a potential decision not to hold a death inquest in the case would of necessity lead Mr Wilmes having to take avoidable and lengthy legal steps.  As Mr Wilmes stated, there was no reason to hide any information by anyone from anybody, applying in particular to a situation where a decision maker (the Coroner) unnecessarily limits his own scope of evidentiary details thus “colliding with his statutory obligations”.

22.The ASOC stated the following (sic):

The plaintiff’s claim is for Tort of Misfeasance in public office committed by the Coroner, West Kowloon Court leading to erroneous decision-making on his part as to neglecting to order a death inquest in the face of obvious facts/events necessitating such order.  His purported reliance in arriving at that decision supposedly premised on information brought to his attention at the time of the case at issue being reported to him, gained after taking notice of the contents of the Autopsy Report, the Police Death Investigation Report and evaluating the ‘Independent Medical Expert Opinion’. In the process of so doing, he disregarded, against better knowledge, pivotal factional details requiring clarification/confirmation by way of a death inquest.  The statements made afore are to be considered an extension/complementation of those transpiring as of being descriptive of causes of action contained in the affidavit on file with the court and the Coroner, having been filed as of 18. day of October2019.  Further detailing of causes of action is contained in the appended documents.  Furthermore, the appended exhibits bear out, that the behaviour characterised above of the coroner is continuing at the time of this writing in that current requests by Mr Wilmes for complete information according to the stipulations of the Coroners Ordinance are not being responded to.  The legal remedy envisaged and hereby applied for is that it be ordered by The High Court, according to Cap. 504 Coroners Ordinance, Part III, Section 20, Rule 1 (a), that a death inquest be held.  The substrate for “… which ought to be held;…# is provided for by the appended particulars.

23.The appended documents are within the affirmation dated 22 June 2020, which primarily comprises Mr Wilmes’ paragraph by paragraph critique of the Coroner’s decision notified by his letter of 12 May 2020.  As it was put by Mr Wilmes in introduction:

The following remarks are based on the objective analysis as to grammar and content of the document dated 12. May 2020 notifying the plaintiff on behalf of the coroner of his decision, not to order a death inquest and his ‘finding’ of a natural death.  The document contains a closed set of perceived facts/information/opinions supposedly providing the basis for such decisions/determination.

24.Following that critique, Mr Wilmes set out what he says is the “real story”, as follows (sic):

The ‘real story’ (any references to criminal/civil liability/patient wishes/ n ting past medical history predating the PET Scan findings of Dec 2018 etc stripped off):

PET-CT scan indicated in mid December gradual progression of neoplastic disease under anti-mitotic chemotherapy.  Patient in reasonable clinical condition.  Thus change to temporary anti hormonal therapy (Tamoxifen) was instituted pending results of biopsy and analysis of selected liver metastasis performed 3. Jan 2018.  Results of biopsy indicated no qualitative change of receptor status – hence the change of chemotherapeutic regimen to Pablociclip/Ibrance as envisaged in Mid December was planned for January with the starting date already set; the hospital appointment at the set date did not result in the institution of the new chemotherapy regimen – information upon request by the patient given: “The doctor is out of the office today”.  On the occasion of subsequent appointments the plaintiff reported increasing shortness of breath asking whether something could be done about that; a cursory examination of the patient came to the conclusion: no shortness of breath.  Later on, a telephone inquiry by the patient whether a planned appointment could be moved up in view of the increasing problems was unsuccessful.  On examining the PET scan findings (massive flair up of tumor growth associated with massive right-sided pulmonary effusion and cessation of renal function) on 8.4.2019, the plaintiff decided, to bring the patient to emergency admission at QMH on 9. March 2018 on a ‘no matter what basis’

Summary description of clinical course: life threatening derangements of laboratory parameters (e.g. potassium level) were successfully corrected by attending to the renal dysfunction; drainage of pleural effusion was unduly delayed.  Inflammatory processes relating to the lungs and/or the urinary system were not a problem.  In the early afternoon on March 17, 2018 the plaintiff witnessed in the presence of other family members profuse voluminous both trans-oral and trans-nasal vomiting of a semi-viscous fluid not containing any particulate matter.  These events were further witnessed by the nursing personnel and later described by the plaintiff to the physician on duty – Dr. Tiffany Sum.  The plaintiff demonstrated samples of the regurgitated fluid to her for her inspection and cautioned against not taking into account potential compromise of pulmonary function due to aspiration of that fluid.  The plaintiff noted that later an antiemetic was applied by the physician.  No nasogastric tube was placed.  The essentials of the further course are a matter of record.  The name of the physician, Dr. Tiffany Sum, is conspicuously absent from the witness lists as provided by the police and the ‘independent medical expert witness’.

25.The only identified cause of action relied upon by Mr Wilmes is the tort of misfeasance in public office.  (This was confirmed by Mr Wilmes in his submissions.)  The only legal remedy envisaged and sought in the pleading is an order that there should be an inquest.  There is no claim to any damages or other relief.

D.     Basis of Strike Out Application

26.There is no dispute as to the legal principles applicable on an application to strike out a claim or defence under RHC Order 18 rule 19.  They can be stated shortly.

27.It is only in plain and obvious cases that the court should exercise its summary powers to strike out the endorsement on any writ or any pleading under the rule.  A reasonable cause of action means a cause of action with some chance of success when the allegations in the pleading are considered.  A proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed.  The expression “frivolous or vexatious” includes proceedings which are an abuse of the process.  An abuse of the process may also arise if an action is completely groundless, is a sham or entirely without substance.

28.Further, where the question of potentially striking out a pleading is dealt with on an appeal from the Master to a Judge in Chambers, the application is dealt with by way of an actual rehearing of the application which led to the order under appeal.  The Judge treats the matter as though it came before him for the first time.

29.As Mr Yim identified, the elements required to establish the tort of misfeasance in public office were set out by Lord Steyn in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at 191Bff.  First, the Coroner must be a public officer.  Secondly, the conduct complained of must have been by the public officer in the exercise of public functions.  The third requirement concerns the state of mind of the Coroner. Fourthly, regard must be had to the elements of proximity, causation, damage and remoteness.

30.As to the mental element, Lord Steyn stated, at 191E-F:

The case law reveals two different forms of liability for misfeasance in public office.  First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons.  This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive.  The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff.  It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful.

31.Lord Hobhouse referred to three variants, conveniently labelled “targeted malice”, “untargeted malice” and “reckless and targeted malice” respectively.  Lord Millett thought the first two limbs were merely different ways in which the necessary element of intention is established; the first limb established by evidence and the second by inference.

32.In Tang Nin Ming v Secretary for Justice [2000] 2 HKLRD 324, at 326G-328I, Ribeiro JA (as he then was) followed the approach taken by the House of Lords in the Three Rivers case, holding that it “illuminates” the state of mind that must be established on the part of the public officer allegedly liable.  Ribeiro JA identified that the choice for the House of Lords was between the subjective test requiring knowledge on the part of the officer that his decision or act would probably damage the plaintiff and the objective test of reasonable foreseeability of such harm.  The choice was unanimously the former option, that is the subjective test, with any of three variants of the requisite mental state being sufficient to found liability.

33.As to reckless untargeted malice, Ribeiro JA said as follows:

What Lord Hobhouse called “reckless untargeted malice” was also accepted as a sufficient mental state to found liability.  Lord Steyn approved the approach that had been taken by Clarke J and the Court of Appeal below, as follows:

Clarke J lucidly explained the reason for the inclusion of recklessness [1996] 3 All ER 558 at p.581:

The reason why recklessness was regarded as sufficient by all members of the High Court in Northern Territory of Australia v Mengel (1995) 69 ALJR 527 is perhaps most clearly seen in the judgment of Brennan J.  It is that misfeasance consists in the purported exercise of a power otherwise than in an honest attempt to perform the relevant duty.  It is that lack of honesty which makes the act an abuse of power.

The Court of Appeal accepted the correctness of this statement of principle: [2000] 2 WLR 15 at pp.61G-62A.  This is an organic development, which fits into the structure of our law governing intentional torts.  The policy underlying it is sound: reckless indifference to consequences is as blameworthy as deliberately seeking such consequences.  It can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its second form.

It is therefore established that “subjective recklessness on the part of a public officer in acting in excess of his powers is sufficient” (per Lord Steyn).  This is a state of mind involving “recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not” (per Lord Steyn); or “reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce” (per Lord Hutton, citing Brennan J in Northern Territory of Australia v Mengel (1995) 69 ALJR 527 at p.546); or “… ‘a conscious disregard for the interests of those who will be affected by’ the exercise of the power” (per Lord Millett, citing Blanchard J in Garrett v A-G [1997] 2 NZLR 332 at p.349).

As Lord Steyn’s speech makes clear, the plaintiff must come within the ambit of the offending public officer’s intent, knowledge or recklessness in two ways.  First, the officer must have acted “in the knowledge that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member”.  Secondly, the officer’s intent or knowledge “must be directed at the harm complained of, or at least to harm of the type suffered by the plaintiffs.”

34.In the Tang case, the claim for misfeasance in public office was dismissed, as the pleadings only made bare assertions as to the officer’s mental state, and there was no realistic prospect of establishing that the officer was subjectively aware that his conduct would lead to the type of damage of which complaint was made.

35.Mr Yim submits that in this case, Mr Wilmes has failed to plead anywhere in the ASOC, or his 1^st or 2^nd affirmations, the requisite mental element on the part of the Coroner in order to mount a claim for misfeasance in public office.  Rather, he says, there are only bare assertions against the Coroner for mis-using his discretionary powers, by withholding information from properly interested persons or by neglecting to order a death inquest.  There is no pleading of the mental element nor the factual basis forming the requisite mental element of mind on the part of the Coroner.

36.Mr Yim also submits that damage has not been pleaded, including what harm was suffered by Mr Wilmes as a result of the Coroner’s acts, and how the Coroner had a subjective intent to cause such harm.  Nor, Mr Yim submits, is there any other identifiable cause of action pleaded against the Coroner.  Further, the Notice of Appeal fails to put forward any grounds of appeal as to why the Master erred in considering that there was no reasonable cause of action pleaded by Mr Wilmes.

37.Mr Yim also submits that what transpires to be the crux of Mr Wilmes’ complaint was that the Coroner had continued to withhold information from him before and after the decision was made as to whether an inquest would be held.  Any claim based on the alleged non-provision of information lacks legal foundation and cannot possibly succeed, and further amounts to an abuse of process.  Again, no ground was identified in the Notice of Appeal as to why the Master erred in striking out the ground on the basis of frivolous and/or vexatious and/or otherwise amounting to an abuse of process.

E.     The Plaintiff’s Submissions

38.Mr Wilmes emphasised that it was a misconception on the part of the Coroner and those representing him, as well as the Master, that the current proceedings arose from the series of requests made by Mr Wilmes for documents and information.  Rather, the correct starting point, being the pivotal point in the clinical history of Mrs Wilmes, was on 15 December 2017.  With the benefit of hindsight, it is now possible to see that a change in therapy brought about in predictable fashion whatever else then flowed.

39.Mr Wilmes dealt in some detail with the underlying factual matters, and I hope I will be forgiven for not engaging in a repetition of much of that detail (which is unnecessary for the purposes of this decision).  Some of the matters were, of course, set out in the affirmation (see above), though expanded upon orally.

40.Mr Wilmes identified the trigger as being a PET Scan, and the treatments that flowed from that occasion, including the change of approach to therapy following the performance of a biopsy on 3 January 2018. He also referred to what he described as the ‘golden opportunity’ afforded by a subsequent PET Scan on 8 March 2018, which identified a massive accumulation of pleural fluid on the right side, and which led to Mrs Wilmes being admitted the next day.

41.The pulmonary fluid was one of the symptoms. Another was electrolyte derangement, and a problem with the potassium level, connected to renal dysfunction.  There were further events supporting a less pessimistic view, including the reduction of the potassium level, meaning a reduction in the life-threatening condition.  Mr Wilmes explained his view that any assumption that the kidney dysfunction was caused by cancer was potentially erroneous.  In any event, in early March things seemed to be evolving in a positive way, with apparently a change of mind in the hospital cancer team.

42.Unfortunately, on 17 March 2018, during visiting hours, Mrs Wilmes vomited a voluminous quantity of fluid, which was not food but semi-viscous and brownish.  The anti-emetic prescribed was not, in Mr Wilmes’ view, the appropriate ‘fix’.  Further, he described the working diagnosis of pulmonary embolism as being a nonsensical diagnosis, and flowing from an unrecognised chain of events.  Despite Mr Wilmes expressing his view that it would be a waste of time to engage in a CAT Scan of the brain, it was nevertheless performed.  Meantime, intubation was also performed.  Mrs Wilmes’ reaction to the integration process suggested, Mr Wilmes submitted, that though she was sedated her brain function was ‘OK’.  What followed thereafter did not, in Mr Wilmes’ view, contribute significantly to Mrs Wilmes’ demise.  Though he did not use the phrase, I think Mr Wilmes was saying the die was by then cast.

43.Mr Wilmes made submissions as to the proper definition of the proximate cause of death, and to the meanings of desaturation and aspiration.  He also sought to draw my attention to the distinction between ‘pneumonia’ and ‘biliary chemical pneumonitis’.  Mr Wilmes then explained his concerns as to the content of the death certificate Form 18, and the deletion of the word ‘aspirational’.  As the description did not match his own clinical observation, he refused to accept the death certificate and took only a photograph of it.

44.Thereafter, it seems that Dr Wong felt compelled to report the matter to the Coroner’s Court, but Mr Wilmes said that was an improper use of clause 1 on the form, giving rise to an irregularity of reporting to the Coroner, and a less specific term “colliding with” a proper description of the proximate cause of death.  In other words, Mr Wilmes described it as a misrepresentation of the cause of death.

45.Mr Wilmes went to the Coroner to demonstrate to him what he thought, and spent two hours with him.  Therefore, Mr Wilmes says the Coroner had full knowledge of the case.  He then explained why he took out the earlier proceedings about the order for an autopsy.

46.As to the claim in these proceedings, Mr Wilmes submitted that it was one for misfeasance in public office, and not one for any request for documents.  The amendment to the original claim came about after further documents had been provided.  Those documents had a two tier effect, first that Mr Wilmes recognised his own suspicions were appropriate, secondly leading to the important decision as to leave open so many questions, including whether an inquest was indispensable.

47.As to the elements of the tort, Mr Wilmes submitted that he had pleaded all elements, especially the mental element.  He posed the question of how the mental element is to be – or how it can be – delineated as being the problem in the case.  Taking a ‘bottom-up’ approach to the facts and deductions, there ought to have been a move to obtain complete data, not incomplete and biased data, before the Coroner came to a view.

48.Mr Wilmes also submitted that the constant repetitive attempts by the Coroner to end these proceedings are part of the overall picture.  Whilst Mr Wilmes says he has been accused of misusing the court’s process, he sees it very differently.  The proceedings he has brought are intended to stop the misuse of the process by the Coroner.

49.Mr Wilmes says the injury suffered is not just the failure to hold an inquest, nor is it a complaint just about clerical wrongs.  He said that if a next-of-kin sees what happens, that is harm being inflicted – in the first place, not by the Coroner, but later continued by the Coroner, when what the Coroner did “collided with” the duties of his office. Those duties include the duty to investigate a cause and circumstances of the death, and doing anything else would be beyond legal powers.

50.Mr Wilmes submitted that the Coroner has not done what he needs to in this case, but has merely collected a set of opinions purportedly giving him all the information to make his decision. However, if he engaged in a fact-finding exercise in such a fashion that deviates from fact-finding to suppressing civil litigation, that would be contrary to the duty of the Coroner.

51.Mr Wilmes emphasised that he was not after money, and is still not.  But what is said in the Three Rivers case cannot be made congruent with the facts of this case.  He submitted that there is harm, that does not have to be counted in dollars.  If asked, as I asked him, what he wants to achieve by this action, Mr Wilmes submitted that asking that question raises an undue implication, and the case is too complicated, so to decide the case on the strike out application is unacceptable.

52.In reply to Mr Yim’s submissions, Mr Wilmes submitted that the mental element of the action is not demonstrable on one act, but rather is more of a character trait, involving how the Coroner went about fulfilling the duties of his office.  He submitted that collusive actions to bring about a chosen foundation of a decision is not compliant with the duties of office, and ought to be prevented in future.  As Mr Wilmes put it, the whole behaviour of the Coroner over the years is the issue.  Further, the proper cause of death registration is a matter of public interest.

53.Ultimately, Mr Wilmes submitted that it is as ‘simple’ as that the Coroner’s decision-making in the face of the materials constituted the mental element of the tort.  The approach was factually incorrect and biased: bias by police, by the Department of Justice, by the Hospital Authority, and the Coroner is providing excuses for his own behaviour in his public office.  If not a matter of bias, then it was ‘shoddy’.  Mr Wilmes submitted that the Coroner has come up with something which he says is the proper result of doing what is required by his office, but he did not do that, and that raises the question ‘why not?’.

54.In his written skeleton submissions, amongst other things Mr Wilmes had said the following (sic):

The documentary material provided after the decision making of the coroner has – sad enough – only confirmed the anticipated wrongdoings on part of police (shoddy investigation) the provider of autopsy findings (inaccurate in fact), so-called independent medical expert opinion provider (rendition of deliberately biasing information not meeting medical professional standards) etc. The fat printed hypocritical outcry to the court for help to put an end to ‘the plaintiffs never-ending chain of the plaintiff’s chain of enquiries … speaks for it self.  This is only achievable by an appropriate ruling of the court which has not happened thus far and for which I am striving by writing these lines.

55.Addressing the specific legal principles in his written skeleton argument, Mr Wilmes dealt with the four material questions as follows:

(a)  Public officer? – yes

(b)  Exercise of public power as public officer? – yes, but inappropriately.

(c)  The accrual of the behaviour displayed and exercised by Coroner David Ko and detailed in the documents before the court from the point in time of his becoming aware of the details of the case reported to him (CCNN 2442/2018) to the time of this writing meet the requirements as set out by legal authorities such as but not limited to e.g [the Three Rivers case].

(d)  Considerations as to proximity, causation and remoteness are trivial in the context of this case.

56.Mr Wilmes submitted that the requisite mental element is spoken to by the sequence of actions/inactions he has identified.  He also submitted that characterisations of the Coroner’s behaviour in the context of this case aptly consist of ‘reckless indifference’, where damage or harm is implicitly claimed and has undoubtedly been caused by the tortious behaviour.

F.     Analysis

57.I might start by acknowledging Mr Wilmes’ courtesy to the court, and his attempt to be precise (if not exactly succinct) in his submissions and descriptions.  It is also appropriate to recognise and give weight to the fact that Mr Wilmes is unrepresented (though he has clearly conducted some legal research for himself).  Of course, the fact that Mr Wilmes is an unrepresented litigant does not relieve him of the need to comply with procedural rules, for example the rule that pleadings have to be clear, and to file evidence in accordance with a directed timetable.  However, I exercise my discretion to be a little more lenient to Mr Wilmes in giving him an opportunity to put forward his case and to attempt to get things right.

58.With that degree of latitude in mind, I of course also approach the pleading on the basis of the requirements as to pleading a claim as set out in the Rules of the High Court.  Those rules state that every pleading of a claim must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.  In other words, a plaintiff must plead only material facts, and all material facts, but not law or evidence.

59.As I have indicated, a significant part of Mr Wilmes’ submissions (written and oral) dealt with a detailed chronological analysis of events in the period leading up to Mrs Wilmes’ demise.  He also dealt with the various subsequent events, including a review of the process from the commencement of involvement of the Coroner (including his conduct towards these proceedings).  As I understand it, Mr Wilmes submits that those matters must be viewed as a whole, and in effect as a continuum, so as properly to see what it is that gives rise to Mr Wilmes’ criticism of and complaint about the Coroner’s actions.

60.It then falls to the analysis of the ASOC (perhaps together with the underlying affirmations referenced in it) to see whether all material facts as are necessary to constitute the complete cause of action in the tort of misfeasance in public office have indeed been pleaded.

61.First, the pleading identifies the Coroner as a public officer.  Secondly, it also identifies that he was exercising his powers as a public officer.

62.There also seem to me to be the identification of acts or omissions on the part of the Coroner which are said to amount to the misuse of powers or the ‘mis-doing’ (Mr Wilmes’ word) in the exercise of those powers.  For these purposes, I think the language used in the pleading might be said to identify something more than that the Coroner merely erred or was negligent.  In that regard, I have in mind, for example, the following phrases used: (a) “erroneous decision-making … neglecting to order a death inquest in the face of obvious facts/events necessitating such order”; (b) “in the process of so doing, he disregarded, against better knowledge, pivotal factual details …”; (c) “inappropriate exercise of the coroner’s duties of office”; (d) “spurious foundation for decision-making”; (e) and reference to the “real story”.

63.I also accept that the complaint is not simply one of a failure to provide documents or information, though such complaints form part of the context.

64.But the central question on this appeal remains whether Mr Wilmes has pleaded anywhere in the ASOC, or his 1^st or 2^nd affirmations, the requisite mental element on the part of the Coroner.  By reference to the various potential formulations identified above, the pleaded assertions must amount to an allegation of either (1) targeted malice (that is, conduct specifically intended to injure the plaintiff) and/or (2) untargeted malice (that is conduct in the knowledge that there is no power to do the act complained of and that the act will probably injure the plaintiff).  As regards the latter, including if reliance is place on reckless indifference, the pleading must be of a state of mind showing (a) the Coroner acted with the intent or in the knowledge or reckless as to the fact that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member and (b) the Coroner’s intent or knowledge was directed at the harm complained of, or at least to harm of the type suffered by the plaintiff.

65.However liberally one approaches the pleading (including the affirmations), I do not think Mr Wilmes has pleaded that the Coroner engaged in conduct specifically intended to injure him.  Nor do I think Mr Wilmes has pleaded that the Coroner knew he had no power to do those things complained of and that they would probably injure Mr Wilmes. Nor, again however liberally one approaches the pleading, do I think that Mr Wilmes has pleaded that the Coroner acted with the intention or in the knowledge or being reckless as to the fact that his act would probably injure Mr Wilmes and that the Coroner’s intention or knowledge was directed at that harm.

66.Mr Wilmes submissions perhaps came closer to alleging bad faith in the sense of the exercise of public power for an improper or ulterior motive.  But I do not think the necessary elements of the tort were all pleaded.  Nor is there a plea that the Coroner did not have an honest belief that his acts (giving rise to the case) were lawful.

67.In short, there is no proper and necessary pleading of the mental element, nor of the factual basis forming the requisite mental element of mind on the part of the Coroner.  Further, where damage has not been pleaded, there does not seem to me to be a pleading of what harm was suffered by Mr Wilmes as a result of the Coroner’s act, and how the Coroner had a subjective intent to cause such harm.  I do not think that it is sufficient for there to be some suggested implicit pleading of damage or harm.  The alleged harm must be precisely identified, so that there might be a pleading that the precisely identified harm was intended or within the knowledge of the Coroner.

68.In the circumstances, I am driven to the conclusion that the pleading is not sufficient.  There is no reasonable cause of action pleaded in full, and what is pleaded is incapable of amounting to the only cause of action put forward.  It might therefore also be regarded as a frivolous claim.

69.I have considered whether there is any alternative to striking out the ASOC and the action, being either (1) permitting the attempt at some further amendment so as to cure the defect, or (2) treating the action as one being brought specifically to apply for an order that the Court of First Instance order and inquest to be held into the death of Mrs Wilmes.

70.However, in light of the various submissions made, and on application of principle, I do not think either alternative is appropriate to the circumstances.  Leaving aside any possible formulaic use of words, what Mr Wilmes has described does not seem to me to amount to the elements of the tort.  Further, an application under section 20 of the Ordinance is a somewhat different application than a claim in tort.

G.     Result

71.The appeal from the decision of the Master is dismissed.

72.As to costs, I will make a costs order nisi that Mr Wilmes must bear the costs of this appeal.  The order will become absolute if no variation application is made within 14 days.

Mr Wilmes acting in person

Mr David Yim, Government Counsel of the Department of Justice, for the Coroner