Leung Shuk Ling and Others v. Coroner

HCMP 773/2022

[2022] HKCFI 2915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 773 OF 2022

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J U D G M E N T

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A.  Introduction

1.It started as a celebration, but ended in tragedy.

2.On the night of 1 October 2012, a vessel known as the ‘Lamma IV’ sailed from the coast of the Lamma Island into the Victoria harbour, to take the passengers on board to enjoy the National Day fireworks. But at around 8.20pm, the Lamma IV collided with another vessel known as the ‘Sea Smooth’. The Lamma IV sank within 118 seconds after the collision, resulting in 39 deaths and 97 casualties. This was the deadliest shipping accident in Hong Kong since 1971.

3.When tragedy strikes, it is only human for those who have lost their loved ones to seek out the truth, as far as possible, as to how the victims have met their unfortunate death. The families of those who died on the Lamma IV are no exception.

4.In the years following the tragedy, more has been learned about the collision, mainly through (1) the report (“COI Report”) produced by the Commission of Inquiry (“COI”) specifically set up to investigate into the incident, and (2) the criminal prosecutions against those who were alleged to have misconducted themselves.

5.But that is not enough for the Applicants, who are the family of four of those who lost their lives that night (“Deceased”). The Applicants ask for the whole truth of the deaths of their loved ones to be looked into by way of a death inquest. However, by decisions made on 19 November 2020, the Coroner, having considered the finalized death investigation report submitted by the Police in October 2020, decided not to hold a death inquest into the death of the Deceased.

6.By Summons dated 20 June 2022, the Applicants apply to this Court under section 20(1)(a) of the Coroners Ordinance Cap 504 (“Ordinance”) for an order that a death inquest be held into the death of the Deceased. The Applicants say this application is made with the support of the family members of 17 more lost on that night.

7.I am informed that all civil claims arising from the incidents have already been settled. Hence, the Applicants are not seeking any leverage from evidence that might be unearthed from the inquest to improve their civil claims. Counsel for the Applicants, Mr Jeffrey Tam (leading Mr Colman Li), said the Applicants wish to look into the “broad circumstances” of the death of their loved ones.

8.The Coroner is represented by the DoJ. As expected, he has indicated that he would take a neutral stance and would abide by any judgment of the Court. However, he filed an affirmation exhibiting the materials he had considered and which had not been included in Applicants’ affirmations. He was excused from attending the oral hearing which was held on 20 September 2022.

9.At the conclusion of the hearing, I reserved my decision. This is my Judgment.

B.  The Background Facts

10.On the night in question, the two vessels were travelling in opposite directions. The Sea Smooth set off from the Central Pier, with the destination of Yung Shue Wan, Lamma Island. The Lamma IV departed from the Lamma Island, sailing into the Victoria Harbour. The coxswains of the two vessels did not realize the risk of a head-on collision until it was too late.

11.There were some last-minute manoeuvres which were insufficient to avoid the collision. The port (left) side of the bow of the Sea Smooth crashed into the port side of the Lamma IV, making a gash in the hull of the latter.

12.After the collision, part of the bow of the Sea Smooth was inside the hull of the Lamma IV. But the Sea Smooth was able to dislodge itself from the Lamma IV. The Sea Smooth remained afloat and was able to continue sailing until it reached Yung Shue Wan.

13.The Lamma IV was not that fortunate. Water quickly rushed into the hull through the gash, and the compartments were immediately flooded. The lighting system soon failed and the vessel was plunged into darkness. The vessel started to tilt with her stern pointing downwards. In 118 seconds, the vessel reached an angle of incline to the horizontal of 70 degrees. The vessel sank so quickly that it was difficult for those on board to help themselves by retrieving and donning a lifejacket. Some passengers also found it difficult to don the life jacket. Also, as the Lamma IV started to tilt, the seats and benches on the upper deck became detached from the deck and slid towards the stern. Some passengers were trapped by those seats and benches as they slid toward the stern.

14.Almost all of the deaths were caused by drowning, with some injuries caused by colliding with solid objects in the process.

C.  The COI Report

15.Questions arose as to why the two vessels would collide, why the Lamma IV sank so quickly after the collision, why the lifejackets did not prove more helpful, and why the seats and benches detached so easily in the process. These were obviously questions of great public concern about maritime safety in Hong Kong.

16.The answers were revealed to the public, mostly via the findings of the COI commissioned towards the end of 2012, and (to a lesser extent) through criminal prosecutions against those who it was thought should be held accountable.

17.The COI was chaired by Mr Justice Michael Lunn JA and Mr Benjamin Tang Kwok Bun GBS, JP. Various parties were legally represented in the proceedings, often by eminent law firms and Senior Counsel assisted by their juniors. The families of the Deceased were not represented in the process. Some of the exhibits suggest that one of the reasons was that the families were not able to obtain legal aid for representation in the COI and they planned to be involved in the subsequent inquest which they thought would be held at some point in the future.

18.The inquiry ran for 50 days, from December 2012 to March 2013. 113 witnesses were heard. The factual witnesses included passengers and crew members on the two vessels, those who came to rescue, such as policemen and firemen, and the Marine Department (“MD”) officers who were involved in approving the construction of the Lamma IV and the licensing of the vessel to sail, etc. There were also five expert witnesses specializing in vessel construction, marine safety, and other technical aspects relevant to the incident.

19.The COI Report was submitted to the Chief Executive in April 2013. The report was 186 pages in length with more than 100 pages of annexes. The transcripts of the hearing and key documents were also published online.

20.The COI Report is divided into 6 main parts (though there are also various lists of appendices, witnesses, the Deceased and abbreviations):

(1)  Part I relates to ‘Preliminary Matters’, and is dealt with under the subheadings:

(a)  Introduction

(b)  The Appointment of the Commission of Inquiry

(c)  Proceedings Before the Commission.

(2)  Part II is headed ‘The Causes of the Incident’, and is dealt with under the subheadings:

(a)  The Law

(b)  Available Electronic Data

(c)  The Evidence of the Crews

(d)  The Opinion of Captain Pryke

(e)  A Consideration of the Evidence.

(3)  Part III is headed ‘The Circumstances in which the Vessel Sank’, and is dealt with under the subheadings:

(a)  Why Did the Lamma IV Sink and Do So Quickly?

(b)  The Opinions of Doctor Armstrong and Doctor Cheng Yuk Ki

(c)  The Construction and Certification of the Lamma IV

(d)  A Consideration of the Evidence.

(4)  Part IV is headed ‘Why Were So Many Lives Lost?’, and is dealt with under the subheadings:

(a)  (i) The failure of the attachments to the seats, (ii) Difficulties in retrieving and donning adult lifejackets and (iii) The absence of child lifejackets

(b)  A Consideration of the Evidence

(c)  The Minimum Number of Crew to be Aboard the Lamma IV

(d)  A Consideration of the Evidence.

(5)  Part V is headed ‘Passenger Vessels: General Conditions of Maritime Safety – Adequacy of the System of Control’.

(6)  Part VI is headed ‘Recommendations to Prevent a Recurrence of the Incident’, and comprises both Recommendations and an Epilogue.

21.Within Part I can be found the Terms of Reference of the COI, which were stipulated to be:

Enquire into the facts and circumstances leading to and surrounding the collision of the two vessels that took place near Lamma Island, Hong Kong on 1 October 2012: -

(a)  ascertain the causes of the incident and make appropriate findings thereof;

(b)  consider and evaluate the general conditions of maritime safety concerning passenger vessels in Hong Kong and the adequacy or otherwise of the present system of control; and

(c)  make recommendations on measures, if any, required for the prevention of the recurrence of similar incidents in future.

22.Pursuant to section 3 of the Commissions of Inquiry Ordinance Cap 86, under which the COI was appointed, the Chief Executive in Council directed that the determination of any criminal or civil liability of any person shall be outside the terms of reference of the Commission.

23.In summary, the COI Report identified the following.

24.The Sea Smooth and the Lamma IV collided mainly due to human errors committed by the two coxswains. They were found wanting in multiple aspects in the course of navigating the vessels entrusted to them. They had failed to keep a proper look-out, to make use of the radar, to take action to avoid collision, to alter course to starboard and to make warnings/signals to the other vessel, etc. They had breached numerous rules in The International Regulations for Preventing Collisions at Sea 1972, which are applicable in Hong Kong by virtue of the Merchant Shipping (Local Vessels) Ordinance Cap 548. The two coxswains were eventually tried in the High Court and convicted of manslaughter and/or endangering the life of others at sea.

25.For the rapid sinking of the Lamma IV after the collision, the COI found the main cause in the absence of a watertight bulkhead between the Tank Room and Steering Gear Compartment. The hull of the Lamma IV was supposed to be comprised of 6 watertight compartments. If one compartment was flooded after a collision, the other compartments should remain dry. This would help the ship to stay afloat. However, it was revealed that the bulkhead separating the Tank Room and the Steering Gear Compartment was not watertight. Had the true situation been properly taken into account, the Lamma IV would not have met the required standards to be approved for sailing by 1998, after lead ballast was added to the vessel.

26.MD was the regulatory authority for approving the construction of the Lamma IV and licensing the vessel to operate. Plans and drawings for the vessel had to be approved by MD when the vessel was constructed. Afterwards, the vessel had to be surveyed by MD on a periodic basis and subject to MD’s satisfaction, the vessel would be issued a “Certificate of Survey” allowing it to operate for the term as permitted by the certificate. The construction of the Lamma IV started in 1994 and the vessel was first licensed for sailing in 1996.

27.Construction of the vessel was a complex process and numerous parties were involved. Apparently, there was some conflict on the initial drawings of the vessel on whether the relevant bulkhead was intended to be watertight or not. Some drawings suggested that the bulkhead was to be built as watertight and the submissions to MD were made on this basis. But the party responsible for constructing the bulkhead thought those drawings were mistakenly marked and did not build the bulkhead as watertight.

28.It was not resolved by the COI whether it was the drawings (marking the bulkhead as watertight) which went wrong, or whether it was the actual construction (making the bulkhead non-watertight) which went wrong. Anyway, the result was a vessel with a non-watertight bulkhead between the Tank Room and the Steering Gear Compartment, but submitted to the MD for approval on a contrary basis. MD approved the vessel for sailing on the same erroneous basis.

29.MD officers involved in approving the drawings testified in the inquiry. It was found that at least one of the officers should have been alerted to the conflict in the drawings. The officer responsible for conducting the initial survey in November 1995 also gave evidence. It was found that he ought to have noted that the relevant bulkhead was not watertight.

30.In 1996, prior to obtaining approval to sail for the first time, the shipyard had to provide to the MD what is called the “Damage Stability” calculation, which assesses a vessel’s ability to stay afloat upon sustaining some damage in its hull. The calculation was done on the incorrect basis that the relevant bulkhead was watertight and omitted to follow an applicable standard known as the 0.1L Rule. Subsequently, in 1998 and 2005, the Damage Stability had to be recalculated and resubmitted to the MD because some alterations were made to the vessel. But the latter calculations were also done on the same erroneous basis. Over the years, none of the MD officers responsible for checking the Damage Stability calculation had discovered the errors.

31.Numerous MD officers had to inspect the hull of the Lamma IV over the years when conducting the periodic surveys, and none of them discovered that the bulkhead was non-watertight.

32.It was said in the COI Report that there was a litany of errors committed at almost every stage by many different people in the process of designing, constructing and surveying the Lamma IV.

33.It was also revealed that the seats and benches attached to the upper deck of the vessel were not “properly secured” to the required standards, despite the fact that the MD had certified them as such in 1996.

34.Whilst there were sufficient adult lifejackets on board, there was complexity in retrieving and donning them. Furthermore, there were no children lifejackets on board, in breach of the what is called the “2007 Regulation”, which became legally enforceable in 2007. However, documents in MD’s records showed that in each of the regular surveys from May 2011 onwards, the MD officers had certified the vessel as having the required number of children lifejackets, despite the fact that there were none on board.

35.Evidence from different MD officers was conflicting as to why the Lamma IV was approved for sailing in breach of the 2007 Regulation and why it was certified as being in compliance with the regulation, contrary to the facts. Some MD officers testified that the department had adopted a policy not to enforce the 2007 Regulation, as a result from the lobbying by ferry operators. But there were no black and white records of such a policy. One MD officer, who insisted he had seen and counted the children’s lifejackets on board of the Lamma IV during the survey, was subsequently prosecuted and convicted of perjury.

36.As identified above, besides ascertaining the causes of the incident, the Terms of Reference of the COI also included the evaluation of the general conditions of maritime safety concerning passenger vessels, and the making of recommendations on measures to prevent the recurrence of similar incidents in future. These are in Part V and Part VI of the COI Report.

37.In evaluating maritime safety concerning passenger vessels, the COI had considered the opinion of two expert witnesses, alongside officers from the MD. Focus was on whether the then system enforced by the MD was adequate to ensure safety of passenger vessels. The COI had considered aspects pertaining to the approval of plans and drawings for construction of vessels, the initial survey, the final inspection and the periodic surveys conducted by the MD, the required standards of life-saving equipment on board, including child lifejackets, the hammers to be used in an emergency, the need to have VHF Radio and AIS equipment on board, the applicable safe management system, etc.

38.The COI made 13 detailed recommendations on the safety and control systems to be enforced on ferries carrying 100 passengers or more. They were set out in §468 of the COI Report, as follows:

THE RECOMMENDATIONS

468.  The following are measures we would recommend to the Administration in order to prevent the recurrence of similar incidents in future –

(1)  The Marine Department should check and verify the standard of watertight subdivision of all vessels permitted to carry more than 100 passengers first certified before 1 January 2007.

(2)  The same safety requirements should apply to ferries and launches carrying more than 100 passengers. Operators of such vessels should be required to implement a safety management system approved by the Marine Department.

(3)  All ferries and launches permitted to carry more than 12 passengers should be required to carry a VHF radio and be equipped with rocket parachute flares in the wheelhouse, and vessels permitted to carry more than 100 passengers be equipped with AIS, collision avoidance radar, a VHF radio and rocket parachute flares, the latter to be carried in the wheelhouse.

(4)  All coxswains of vessels permitted to carry more than 100 passengers should have a basic medical examination and eyesight test at intervals not exceeding five years and all seamen required to keep a look-out should have an eyesight test at the same intervals.

(5)  All vessels permitted to carry more than 100 passengers:

·  should have a look-out on the bridge, in addition to the coxswain, during the hours of darkness and in reduced visibility and high speed craft should have a look-out on the bridge at all times;

·  should have a muster list, so that every member of the crew is aware of his duties in the event of emergency.

(6)  Sufficient child lifejackets should be carried for every child on board all classes of vessels and consideration should be given to the provision of infant lifejackets.

(7)  The Marine Department should –

(i)  revise the format of the Certificate of Survey to state only the statutory minimum requirement, and substitute the use of “＊” with stipulated numbers;

(ii)  require ship owners to print the name of the vessel on each of the lifejackets on board;

(iii)  revise the practice of checking of lifejackets to ensure that lifejackets are properly stowed in easily accessible locations and that they are actually on board;

(iv)  require ship owners to provide sufficient signs designating the locations of lifejackets;

(v)  require demonstration (by crew or through graphic display) of how lifejackets are donned; if possible, installation of video facilities for safety briefing and demonstration purposes; and

(vi)  require owners and operators that all piers used to embark and disembark passengers broadcast via video, or put up posters, demonstrating the donning of lifejackets.

(8)  High speed crafts built before 2007 should be required to have an operating manual, a route operating manual and a training manual and their coxswains be required to attend a high speed radar simulator course.

(9)  The Code of Practice should be amended to provide for an empirical value or standard against which the attachment of seats to the deck is to be judged, which value or standard should take into consideration their loading not only during a normal voyage but must also cater to excessive stern trim in the course of a marine casualty.

(10)  The Marine Department should require its Ship Surveyors and Inspectors to document fully in writing the reasons for any changes to the licensing conditions of vessels and communicate them in writing to their superior officers and the respective owners/operators. It should do so to ensure that its procedures are resistant to corrupt practices and to strengthen its management monitoring.

(11)  The Marine Department should stipulate the division of responsibilities in the approval of its plans and the survey of a vessel by its officers. Certificates of Survey/Certificates of Inspection should contain a statement signed by the surveyor that the vessel has been built in accordance with the approved plans.

(12)  The Marine Department should require watertight doors be fitted with alarms to the wheelhouse to indicate whether they are open or closed and that they be appropriately marked.

(13)  We agree with and accept the principle set out in the Code of the International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (Casualty Investigation Code), IMO resolution MSC. 255(84), that the MAISSPB be independent of the Marine Department. However, we consider that the establishment of a wholly independent accident investigation board may not be entirely appropriate for the scale of activities in Hong Kong. Therefore, we recommend that an independent qualified professional be appointed specifically to take charge of marine accident investigation, as head of MAISSPB in the Marine Department, who shall report directly to the Director of Marine. This would enable the MAISSPB to benefit from the support and expertise in the Marine Department while maintaining its impartiality.

39.As can be seen, a number of the recommendations concern MD’s work process in carrying out its role as the regulatory authority in ensuring safety of passenger ferries, e.g. approval of drawings and plans for vessel construction, checking of watertight subdivisions of the vessels, surveying the vessels before certifying then as satisfactory and the forms to be used, documentation of the surveys, the appointment of independent qualified professions to take charge of marine accident investigation etc.

40.There are also recommendations regarding the safety and control regulations, e.g. the safety requirements and safety management system practiced on board, the equipment related to prevention of collision, the qualification of coxswains, the system regarding look-out to be practised during dark hours, the number of child lifejackets, etc.

D.  THB’s internal investigation

41.In response to the COI Report, the Transport and Housing Bureau (“THB”) conducted an internal investigation to look into whether there were maladministration and negligence of duty on the part of MD officers in carrying out their duties. The THB investigation was completed by March 2014. A total of 55 officers were identified to have come across the Lamma VI in the exercise of their duties from 1994 to 2012. 17 were held to have misconducted themselves in some way. 4 of the officers had already retired by that time. Of the 13 serving officers, they were subject to disciplinary action. THB also referred some cases to the Police on the basis of suspected criminality.

42.Details of the internal investigation reports were not disclosed. Not disclosed to the public was the personal information of those officers who were said to have misconducted themselves, how they had misconducted themselves or the disciplinary action to which they had been subject. In the THB’s report to LegCo in April 2014, disclosure was initially refused on the basis of not prejudicing the on-going criminal investigation. After the DoJ had confirmed that there would be no further prosecution by October 2020, the THB refused to disclose those reports for the reasons that internal disciplinary action would not be disclosed to the public.

E.  Police’s Death Investigation Report submitted to the Coroner

43.Though subject to some later amendments to take account of the subsequent events such as criminal prosecutions, the Death Investigation Report was originally dated 23 April 2015. With the benefit of waiting for the conclusion of the relevant criminal prosecutions, the Death Investigation Report was only finally considered by the Coroner in around October 2020. The report (including the witness statements) runs to more than 1,500 pages and fills three large lever-arch bundles. The report was made available to the Applicants under section 13 of the Ordinance.

44.The Conclusion to the Death Investigation Report, at §§42-43 stated as follows (bold and underlining in original):

Conclusion

42.  While the trial of the two coxswains dealt extensively and conclusively with the circumstances surrounding and leading up to the collision, and the COI shed light upon the physical condition of the LAMMA IV and how it was designed, built and approved for sailing, in-depth investigation into the Marine Department (MD), Cheoy Lee Shipyards (CLS), Hong Kong Electric Co. (HKE), and Hong Kong & Kowloon Ferry (HKKF) was completed only after the COI. The regulatory body namely the Marine Department, as well as the employers of the crew involved in this incident, have never been examined by any public tribunal of fact.

43.  It is recommended that a Death Inquest be held to ascertain the cause of the death of the deceased.

45.The Death Investigation Report was passed to the Coroner under cover of a memorandum which read as follows:

Following the tragic collision of the Lamma IV and the Sea Smooth that occurred on 1^st October 2012 just before the National Day Fireworks in which 39 innocent lives were lost, the Commission of Inquiry that was appointed by the Chief Executive of the HKSAR conducted hearings between December 2012 & March 2013, and submitted the ‘COI Report’ to the CE in May 2013. The CE then published the redacted version of the COI Report with the comments regarding navigation removed.

Since then various occurrences have taken place; the coxswains each responsible for their own vessel were recently convicted at the High Court in February 2015 and sentenced to terms of imprisonment, and upon completion of investigation into the Marine Department, the vessels’ owners, and the builder of the Lamma IV – resulting in the arrests of two, one serving and one retired, Marine Department officers who have been charged on 16^th March 2015, now awaiting outcome of prosecution.

In view of the circumstances surrounding the death of the 39 deceased on-board the Lamma IV vessel that have yet to be addressed, and given the seriousness and sensitive nature of case that has been and continues to generate significant public interest, it is recommended that a Death Inquest be held to ascertain the actual causes of death for those who perished.

46.I acknowledge that in light of the recommendation, there might have been a reasonable expectation that a death inquest would be held.

F.  Coroner’s Decision

47.As already stated, the Coroner has filed evidence in these proceedings to assist the Court. In it, he has explained how he reached his decision not to hold a death inquest into the death of the Deceased, which was notified to the Applicants by three letters, all dated 19 November 2020. Though the present question before the Court does not turn on a review of the Coroner’s own reasoning process (see below), it is perhaps helpful to identify what the Coroner has said.

48.In reaching his decision, the Coroner says he considered the following documents:

(1)  the COI Report;

(2)  judgments in relation to the prosecution against two coxswains of the Lamma IV and the Sea Smooth;

(3)  judgments in relation to the prosecution against two MD officers;

(4)  autopsy reports; and

(5)  Death Investigation Report of the Police.

49.In the letters announcing his decision, the Coroner considered his mandate under section 9 and section 27 of the Ordinance and made reference to the COI and the relevant criminal proceedings.

50.The Coroner also referred to the autopsy reports of the Deceased in each of the letters. The autopsy reports showed that the Deceased each died of drowning or of causes of death consistent with drowning.

51.The Coroner expressed the opinion that the documents clearly revealed the cause of and the circumstances connected with the death of the Deceased. In fact, he thought the functions of the COI and the purpose of a death inquest have completely overlapped. In addition, he had reviewed the recommendations made by the COI in detail and agreed that such recommendations have already covered all the situations which can prevent the occurrence of similar death incidents. The additional evidence collected after the COI Report and the conclusion of the related criminal proceedings did not assist/change the investigation of the cause of, the circumstances connected with, and the prevention of the death. He fully accepted the COI Report and the criminal judgments. He then concluded without holding an inquest under section 14 of the Ordinance that the Deceased were unlawfully killed.

52.By letter dated 1 December 2020, 10 family members of the Deceased (including the Applicants) wrote to the Coroner asking him to reconsider his decision. On 21 December 2020, the Coroner’s clerk replied (on the instructions of the Coroner) informing them that the decision would be maintained.

53.In the reply, it was reiterated that the COI Report and the related criminal proceedings had already revealed the cause of and circumstances connected with the death of the Deceased, and the additional evidence collected after the COI Report as well as the conclusion of the related criminal proceedings did not assist/change the investigation of the cause of, the circumstances connected with and the prevention of the death. The letter further explained that the Coroner’s court is not asked to make any finding on questions of civil liability, so that it is not a venue for investigating or determining the criminal liability and/or liability for negligence. The family members were, however, also reminded that the Coroner may review his decision if the family members would provide any new evidence as regards the cause of, or the circumstances connected with, the death of the Deceased.

54.On 9 March 2021, the then Secretary for Justice also refused to invoke her power under section 17 of the Ordinance to hold a death inquest.

G.  The Law

55.In making the present application, the Applicants are clearly properly interested persons, and I have already noted that they make the application with the support of additional family members representing another 17 victims.

56.The application is made under section 20(1)(a) of the Ordinance which provides:

Where the Court of First Instance, upon the application in open court of a properly interested person of the Secretary for Justice, is satisfied (a) that a coroner has failed to hold an inquest which ought to be held; the Court of First Instance may order an inquest to be held into the death of a person…

57.It is settled that when the Court is considering an application under section 20(1)(a), the Court is not reviewing the decision of the Coroner. Instead, the Court is required to approach the matter on a de novo basis, by asking itself whether an inquest “ought to be held”. The burden falls on the applicant to present sufficient evidence to persuade the Court why an inquest ought to be held. For example, where it is said that an inquest ought to be held because the jury or the coroner might make useful recommendations, it is incumbent on the applicant at least to identify broadly the areas on which useful recommendations could be made and to point to the evidential basis for saying so: see Secretary for Justice v William Ng Esq, a Coroner (unreported, HCMP 690/2009, 16 November 2010) at §§41 and 61.

58.Of relevance are also section 9(2) and section 27 of the Ordinance, which identify the purposes of a death inquest:

9.  Investigations into deaths

(1)  Subject to subsection (2), a coroner may investigate—

(a)  a reportable death; or

(b)  any other death of a person which the coroner considers should be investigated in the public interest, whether or not—

(i)  the coroner has viewed the dead body concerned;

(ii)  an autopsy has been performed on that body;

(iii)  an inquest into the death is to be held by the coroner; or

(iv)  an investigation into the death has previously been carried out.

(2)  The purpose of an investigation into the death of a person carried out pursuant to subsection (1) shall be to investigate the cause of and the circumstances connected with the death and, for that purpose, the investigation shall be directed to ascertaining the following matters in so far as they may be ascertained—

(a)  the identity of the person;

(b)  how, when and where the person came by his death; and

(c)  the particulars for the time being required by the Births and Deaths Registration Ordinance (Cap. 174) to be registered concerning the death

27.  Purpose of inquest

The purpose of an inquest into the death of a person shall be to inquire into the cause of and the circumstances connected with the death and, for that purpose, the proceedings and evidence at the inquest shall be directed to ascertaining the following matters in so far as they may be ascertained—

(a)  the identity of the person;

(b)  how, when and where the person came by his death;

(c)  the particulars for the time being required by the Births and Deaths Registration Ordinance (Cap. 174) to be registered concerning the death; and

(d)  the conclusion of—

(i)  where the inquest was held without a jury, the coroner who held the inquest;

(ii)  in any other case, the jury concerned,

as to the death.

59.Among the matters which an inquest shall set out to ascertain, the emphasis of Mr Tam was on “how” the person came by his death.

60.In Sony Rai v Coroner [2011] 2 HKLRD 245, Reyes J relied on the English case of R (Middleton) v West Somerset Coroner [2004] 2AC 182 to depart from the previous Hong Kong position that the question of “how” was limited to the direct or immediate cause of the deceased’s death. In Middleton, it was held that the word “how” under section 11(5)(b)(ii) of the Coroner’s Act 1988 (similar to section 27(b) of the Ordinance) shall be broadly construed as “by what means and in what circumstances” in order for a state to meets its duties to protect a person’s right to life under Article 2 of the European Convention of Human Rights. It permits a wider inquiry than the immediate means causing a person’s death. Reyes J held that section 27 should be similarly broadly construed to give effect to Article 28 of the Basic Law (“BL 28”) and Article 2 of the Hong Kong Bill of Rights (“BOR2”).

61.Reyes J also endorsed the notion that the substantive obligation to protect right to life would be toothless without the backing of a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that the right to life has been violated and state agents might be implicated in the violation: see §§18-19.

62.As to how those procedural obligations could be met, Mr Tam drew the Court’s attention to R (Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) [2011] 1 AC 1. It was said that the procedural obligations require that a state, of its own motion, should carry out an investigation into a death that has the following features: (1) it must have a sufficient element of public scrutiny of the investigation or its results; (2) it must be conducted by a tribunal that is independent of the state agents who may bear some responsibility for the death; (3) the relatives of the deceased must be able to play an appropriate part in it; and (4) it must be prompt and effective. This was summarized as meaning that the investigation into a death must perform its essential purposes, namely to secure the effective implementation of the domestic laws which protect the right to life and to ensure the accountability of state agents or bodies for deaths occurring under their responsibility.

63.In the Sony Rai case, Reyes J said that whilst the procedural obligations under the Basic Law (BL 28) and the Bill of Rights (BOR2) could be fulfilled by other means, a death inquest is the customary avenue by which such obligations could be met.

64.The approach set out by Reyes J in the Sony Rai case was recently adopted and applied by Mimmie Chan J in her decision in Imelda Quinto Abong v Coroner [2021] 2 HKLRD 607, at §42. In the same case, at §40, she drew attention the requirement that, when deciding on the need to hold an inquest under the Ordinance, due consideration is to be given to the duty of the government and public authorities in Hong Kong to safeguard and guarantee the individual’s right to life.

65.This is further support for the concept that the word “how” in section 27(b) of the Ordinance should be read as empowering an inquest, where appropriate, to investigate not just the means by which a person has died, but also the broad circumstances in which the person has lost his or her life.

H.  Grounds of Application

66.Mr Tam’s starting submission was that, from its terms of reference, it can be seen that it was not the COI’s duty to investigate the broad circumstances of the death of the Deceased. Mr Tam said that the Applicants acknowledged and echoed the Investigation Officer’s observation that the navigation of the two vessels and how the collision took place had been covered in the COI Report and the subsequent criminal prosecutions, but that simply meant that the coroner could admit those materials (or the appropriate part of them) as documentary evidence at an inquest pursuant to section 40 of the Ordinance. Though there might be a need for questions raised in clarification, such an approach would avoid repetition, and the inquest could focus on issues which had not been comprehensively covered in the COI hearing. Such an approach would also alleviate any concerns about the quality of oral evidence as a result of the lapse of time.

67.Mr Tam then advanced two broad grounds of argument.

68.First, he said that subsequent to the conclusion of the COI and the criminal proceedings, further evidence has been unearthed and more witnesses had been located which could shed more light on the broad circumstances in which the Deceased met their unfortunate death.

69.The COI commenced in December 2012, within less than three months after the collision. However, the police investigation into the various parties involved in the construction of the Lamma IV was only completed after the COI. Nor had the 17 MD officers which were concluded by the THB’s internal investigation to have misconducted themselves been subject to the scrutiny by a public tribunal of fact, as required for the Government to discharge its procedural obligations under BOR2 and BL 28.

70.Second, Mr Tam said that the new evidence had also revealed further systemic deficiencies which were not included in the 13 recommendations made by the COI. He pointed to the working practices and employment conditions of seafarers.

I.  New Evidence on the Deceased’s Circumstances of Death

71.I have traversed in some detail above the main causes for the heavy casualties as identified by the COI Report. In summary, they were found to be: (1) the human errors made by the two coxswains in navigating the vessels, (2) the bulkhead between the Tank Room and the Steering Gear Compartment being non-watertight, (3) the Damage Stability calculation of the vessel being made on the incorrect basis, (4) the seats on the upper deck not being properly secured, and (5) the difficulties in retrieving and donning the adult lifejackets and the absence of children’s lifejackets.

72.Mr Tam did not dispute these were causes of the collision and the heavy casualties. But he said much of the emphasis in the COI Report on the second and third matters – the bulkhead and stability calculation – was on the approval of drawings before the construction and the subsequent issue of certificates by the MD officers. He noted that all 13 recommendations by the COI were directed at the MD for its improvement.

73.But Mr Tam submitted that further evidence had come to light which would further reveal the truth in respect of the errors concerning the bulkhead and the Damage Stability calculation. After the COI, the Investigation Officer was able to locate some of the people/parties involved in the drawings and constructions of the relevant bulkhead, and they offered a version contrary to the evidence given by other people in the COI. In summary, the additional materials are as follows.

74.There is now more evidence on the circumstances in which the bulkhead between the Tank Room and the Steering Gear Compartment was not built as watertight. Ship construction involved multiples parties. The Investigation Officer has discovered another company known as Vanzon that was involved in the process. Vanzon was responsible for liaising between the main manufacturer, Cheoy Lee Shipyards and Wuzhou Shipyard, the constructor of the hull of the Lamma VI. The founder of Vanzon, Mr Cheng, had been contacted and he gave a statement to the effect that Cheoy Lee was informed that the bulkhead was to be built as watertight, contrary to evidence of witnesses who had given evidence on behalf of Cheoy Lee in the COI. A Mr Fung, another employee of Cheoy Lee, also confirmed that he was the recipient of another fax, by which Wuzhou Shipyard specifically brought to his attention that there should be a watertight door in the bulkhead at Frame ½, which should be sealed up after work. Mr Fung also stated that the access opening between the tank room and the steering compartment of the Lamma IV was created at the Cheoy Lee Shipyard in Hong Kong. The COI Report made no reference to Vanzon, and neither Mr Cheng nor Mr Fung were witnesses in the COI hearing.

75.As to the Damage Stability calculation to be submitted to the MD, during the COI, Cheoy Lee’s draughtsman, Cheung Fook Chor, seemed to blame the error on his superior who had already left Cheoy Lee and did not give evidence at the COI. That superior, Mr Laizaola, who did not give evidence to the COI, had been located and gave a statement to the effect that it was the draughtsman who had the right to decide to submit the vessel plan for approval and was responsible for checking the vessel plan before approval. He also stated that it was the director of Cheoy Lee who was responsible for checking whether the work on the Lamma IV was carried out properly. These matters were apparently not explored in the COI hearing.

76.As to some of the drawings on which the bulkhead was marked as watertight, Mr John Lim, the director of Naval Consult, the company responsible for the general design and drawings of the vessel, gave evidence at the COI that the marking was a mistake made by one of the company’s former employee. That former employee, Mr KC Tan, had since been located and his version was that whilst he drew the plans of the vessel’s basic structure, deck plans and sections and bulkheads, he submitted those plans to Mr Lim for his approval. Mr KC Tan also stated that he had no idea who made marking on the drawings to describe the bulkhead as watertight.

77.Mr Tam said the omission of the watertight bulkhead was an important aspect leading to the loss of 39 lives and the additional evidence showing how such an omission occurred is highly relevant to the purpose of section 27. He said the new evidence will assist in resolving the apparent conflict on the drawings identified by the COI, and in particular whether the drawings have been mistakenly marked as watertight or whether the watertight door was omitted in the course of installation.

78.On a further point related to the bulkhead, Mr Tam said that many of the MD officers who were found by the THB in its internal investigation to have misconducted themselves had never been examined by any public tribunal of fact. The COI had identified MD officers to be at fault in surveying the Lamma IV, in approving the Damage Stability calculations, and in enforcing the lifejackets requirements. But these officers were not examined by a public tribunal of fact as required by the procedural obligation imposed on the Government.

79.Mr Tam also submitted that the proposed inquest would be an appropriate forum to examine what happened at various work processes, as well as to examine the regulatory position and some aspects of maladministration on the part of MD officers which had not been covered by the COI, in the circumstances where the omission of a watertight bulkhead was not discovered despite regular annual inspection over the years.

80.I accept that aspects pertaining to the bulkhead undoubtedly fall within the circumstances in which persons died in this incident, thus coming within the phrase “how … the person came by his death” under section 27(b) or section 9(2)(b). But those aspects were covered in the COI. What the Applicants seek to do via a death inquest is to have those aspects further investigated in light of the new evidence, with the view to finding out as many details as possible regarding what went wrong or who made mistakes.

81.The question arises as to how much detail concerning the circumstances of a death must be investigated and determined. In the Imelda Quinto Abong case, at §37, Mimmie Chan J endorsed the view expressed by the authors of Jervis on the Office and Duties of Coroners 14^th Ed at §§1-18 to 1-23 that an inquest is to seek out and record as many of the facts concerning the death as public interest may require. I agree. Therefore, it seems to me that the ultimate yardstick is the public interest.

82.The COI had revealed that due to the failures of the various parties involved in the construction of the vessel, the bulkhead was not made watertight. The further evidence since obtained might conceivably go to establish exactly which company, among all those involved in the construction process, or which employee within the same company, could be held responsible for the mistakes made. The question is how those further factual details, assuming they could be unearthed via the proposed death inquest, could or would better serve the public interest.

83.It is not unfair to say that the means by which and circumstances in which the Deceased met their deaths had been substantively covered in the COI and in the criminal proceedings. The COI examined not only the immediate cause – the collision – but also the ‘structural’ causes rooted in the design and equipment on board of the vessel which could traced back to as far as 1994 when the vessel was designed and constructed. The facts revealed by the COI – and to some extent by the criminal proceedings – are sufficient to enable the conclusion (as was reached by the Coroner) that the Deceased died by unlawful killing and the medical cause was drowning. I think the “how” has been established, including as to the broad circumstances.

84.It is understandable that family members would naturally want to trace every detail of how their loved ones met their death. But the public interest does not require the unravelling of every possible factual detail through a death inquest. I am not satisfied that public interest would require a death inquest to go into those additional factual details, which Mr Tam said would be revealed by examining the new evidence.

85.I am not persuaded that public interest would require the investigation into the MD officers by a death inquest:

(1)  Some of the MD officers were indeed examined by an independent public tribunal of fact, i.e. the COI. One of the officers was indeed found to have committed perjury in and was subsequently prosecuted for perjury in criminal proceedings. The list of witnesses of the COI include dozens of MD officers which had dealt with the Lamma IV in the past or who were involved in enforcing the applicable maritime safety regulations.

(2)  The COI did identify the mistakes made by MD as a department, although it might not have pinpointed on each occasion as to which individual officer from MD had committed which mistake.

(3)  In essence, the Applicants want to know more about the errors made by MD, down to the level of being able to pinpoint which individual officers were responsible for which mistakes.

(4)  But I am not satisfied that public interest would require that level of detail, in view of what had already been revealed by the COI and the criminal proceedings.

86.Mr Tam also submitted that there were other aspects which were not covered in the COI. It was subsequently discovered that the coaming of the Lamma IV was lower than required standards and there was new evidence to suggest that there was a metal plating with pointed protrusion installed in the port hull of the Sea Smooth, which had not been considered by the experts in the COI. Mr Tam said this was perhaps especially peculiar since the hulls of the Sea Smooth were made with materials otherwise weaker than the hull of the Lamma IV. I accept this information may enable more detailed understanding about the physical condition of the two vessels and why the Sea Smooth was able to penetrate the hull of the Lamma IV at the time of the Collision. But again, I am not satisfied that the public interest would require further enquiry into these details about the circumstances in which the Deceased met their death.

87.I take note that the family of the Deceased were not represented in the COI – where the English authority in the Smith case seems to suggest that the procedural obligations pertaining to a person’s substantive right to life might require that the family of the Deceased to be able to play an appropriate role in the process of public scrutiny. But the question about the form of the public enquiry and the family’s role to play in it if any must be subsidiary to the prior question of whether the circumstances of the death warrant a death inquest or some form of public enquiry. Given my view that public interest does not require further factual circumstance regarding the circumstances of the Deceased’s death, I do not think the Applicants’ could gain much assistance to their case from their lack representation in the COI.

J.  New evidence revealing further systemic deficiencies which the COI did not give recommendations on

88.The COI Report had looked into the issue of long working hours of seafarers. The crew members of the Sea Smooth had to work on shifts of 24 hours on followed by 24 hours off, without stipulated time for meal breaks. Experts opined that that would lead to fatigue.

89.But Mr Tam submitted that this issue could be further investigated with the help of new evidence. The Investigation Officer had retrieved minutes of meetings in 2014 held between the MD and the ferry companies, showing the proposals to review the work schedules of crew members were strenuously opposed by the ferry companies. Mr Tam submitted that the new evidence suggests that ferry companies had failed to provide a safe system of work and the Coroner, if an inquest is held, could subpoena the relevant witnesses to give evidence on the working practices of seafarers and to give recommendations if necessary.

90.The key facts relating to long shifts were already covered in the COI, with its harmful effects commented on by the experts. Whilst the suggested area of potential recommendation appears to be a sensible one, I suspect it is almost always possible to come up with further improvements or recommendations to add onto the fairly comprehensive and long list generated by the COI with the assistance of experts. I do not think that the public interest requires the holding of an inquest for the purpose of ascertaining if the recommendation as suggested by Counsel could or should be made.

K.  Result

91.Understandable though the desire might be for the Applicants to seek a death inquest so as to hope that all possible details can be pursued as regards the loss of their loved ones, I do not think they have met the burden to present sufficient evidence to persuade the Court why an inquest ought to be held. Indeed, I come to the conclusion in all the circumstances that I do not think that a death inquest ought to be held.

92.I would, therefore, respectfully dismiss the application, with no order as to costs.

Mr Jeffrey Tam and Mr Colman Li, instructed by Ho Tse Wai & Partners, for the 1^st to 3^rd applicants

The respondent was excused from court attendance