Re Hong Kong Orient Shipping Co Ltd Sa

HCMP001677/1981

Headnote

Certiorari - prohibition - Right of interested parties to obtain copies of statements held by Coroner - Power of Coroner to r provide copies of documents being the property of the Director of Marine - Effect of Sec. 60(2) of the Shipping & Port Control Ordinance Cap. 313 - Confidentiality - Public interest - right to withhold documents.

-----------------

Coram: Hon. Mayo, J.

Date of Judgment: 31st December, 1981.

-----------------

JUDGMENT

-----------------

1. This is an application for a Judicial Review of a ruling made by Mr. John Hansen, a Coroner, made during a Coroner's Inquiry into the death of three people who were killed in an accident which occurred on the 10th October last when a ship the "Sunshine Island" came into collision with a jetty owned by Messrs. Green Island Cement Company. During the course of the Coroner's Inquiry, the Coroner was required to make a ruling as to whether copies of statements which had been made by the master and the members of the crew of the ship to the Marine Department pursuant to the provisions contained in the Shipping and Part Control Ordinance Cap. 313 should be made available to all interested parties who were represented at the Coroner's Inquiry. Mr. Steel who represents the owners of the Sunshine Island, and the master of the ship and opposed the application which had been made by Mr. Clarke who represents Green Island Cement Company Limited who had applied for the copies.

2. The Coroner who had received copies of the statements in question from the Marine Department ruled that there should not be disclosure of the statement made by the master but that there should be disclosure of the statements made by members of the crew. When he had made this ruling, the Director of Marine had not been legally represented at the Coroner's Inquiry and it was clear from the papers before us that he had adopted a neutral stance and had placed reliance upon the Coroner to make an appropriate ruling. However the Director had now received legal advice and had decided that it was not his wish to oppose the application for copies of the statements to be made available as proposed. Mr. Clarke submitted that as the Full Bench exercised a jurisdiction amounting to a supervisory role it was necessary for it to deal with the matter on the same basis as that which faced the Coroner when he made his ruling. With this in mind, he opposed the admission as evidence of an affidavit which had been sworn by Captain Pyrke of the Marine Department which deposed to the facts surrounding this application and the attitude which had been adopted by the Marine Department towards this matter. I consider that this is a question of public importance and it is only right that I should adopt a realistic approach to the evidence as a whole. I have therefore decided that I should consider Captain Pyrke's affidavit which does depose to the fact that the Marine Department did adopt a neutral attitude at the time when the Coroner made this ruling together with all of the other material which is in the affidavit.

3. The first question which needs to be determined is whether the members of the crew have a sufficient locus stand to oppose this application. Mr. Clarke argued that as they were not interested parties they did not have such a standing. I do not think this is correct. It is clear to that the new Order 53 of the Supreme Court Rules had the effect of removing technical and procedural differences between prerogative orders and additionally liberalizing the procedural rules relating to the Order. This approach was adopted by the House of Lords in the case of The Inland Revenue Commissioner v. The National Rederation of Self-employed and Small Businesses Limited⁽¹⁾. I am satisfied that I should consider this matter broadly and it is manifest that the members of the crew do have a sufficient interest for the purposes of this Judicial Review.

4. Mr. Steel advanced four grounds of opposition to the ruling which had been made by the Coroner. They were as follows:

5. I propose dealing with these grounds under separate headings.

Discovery of Documents

6. Mr. Steel referred to the Coroner's judgment when he made his ruling. He argued that it could be seen from the judgment that the Coroner had confused the power of discovery of documents with the power to subpoena witnesses to produce documents. Mr. Clarke's reply to this was that he was not seeking an order for discovery of documents. The question is of some importance as it may be necessary to determine the extent to which this factor was weighed by the Coroner in deciding whether or not copies of the statements should be made available to all interested parties. I am satisfied that the Coroner was confused on this issue. What it is clear, however, is that the Coroner did have these statements in his possession. It is also clear that there is no right to discovery of documents in a Coroner's Inquiry and the Coroner certainly has no power to make an order for discovery of documents against any party. It is equally clear that he does have a power to order the production of documents upon subpoena. As the documents were already in his possession this power would appear to be redundant in the circumstances of the present application. The fact that the Coroner may have indicated a measure of confusion in his judgment on this issue does not seem to take matters any further. Mr. Clarke was not seeking an order for discovery and the Coroner has not granted such a right.

The Coroner is not entitled to produce documents which are the property of the Marine Department

7. Mr. Steel referred to the case of R. v. Her Majesty's Coroner ex parte Peach⁽²⁾ where a similar problem was encountered. In that case the deceased died as a result of injuries sustained during a riot. The deceased's brother applied to the Coroner for copies of s statements made by police officers during the course of an internal disciplinary inquiry. Like the present case, the documents were in the hands of the Coroner. This would be a matter of convenience and would obviate the necessity of the Coroner duplicating inquiries which had already been undertaken. At page 503 Lord Widgery had the following to say:

"I see no way in which any one other than the Police Authorities can obtain any sort of legal title to these documents, and therefore prima facie they are not available to be handed over to the applicant. Prima facie the present custodian of the documents, the Coroner, could not without breach of confidence or trust show them to the applicant."

This view was also adopted by Griffiths J. as can be seen from a passage which appears at page 504 of the report:

"It is quite true that the Coroner may allow interested parties to examine a witness called by the Coroner. But that must be for the purpose of assisting and establishing the matters which the inquest is directed to determine. It is not intended by Rule 16 (which is similar to our Rule 12) to widen the Coroner's inquest into adversarial fields of conflict. That being so, because this applicant is in no risk of himself being attached or criticised, it seems to me that the general rules of natural justice, which require a person against whom some accusation is brought to have access to all material that may be relied upon against him, have no application whatever. I think it would be very unfortunate if Coroner's inquests were turned into a field day for lawyers by enlarging the the examination of witnesses called by the Coroner beyond their proper scope."

8. Mr. Clarke argued that the Peach case had been wrongly decided. He pointed out that no cases had been referred to in the judgment or were cited in either the Divisional Court or the court of Appeal. This was rather surprising as one of the reasons given for not allowing disclosure of the statements was confidentiality. This issue had been considered in some detail by the House of Lords in the case of D. v. The N.S.P.C.C.⁽³⁾. This case laid down in some detail the considerations which would have to be weighed in determining whether or not confidentiality could be maintained. Lord Diplock had this to say on page 594 of the report:

"The fact that information has been communicated by one person to another in confidence, however, is not of itself a sufficient ground for protecting from disclosure in a Court of Law the nature of the information or the identity of the informant if either of these matters would assist the Court to ascertain facts which are relevant to an issue on which it is adjudicating. The private promise of confidentiality must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant, a more important public interest is served by protecting the information or the identity of the informant from disclosure in a Court of Law."

and then on page 596:

"In the Court of Appeal as in this house, Counsel for N.S.P.C.C. advanced, as well as what I have referred to as the narrow submission a broad submission that wherever a party to legal proceedings claims that there is a public interest to be served by withholding documents or information from disclosure in those proceedings, it is the duty of the Court to weigh that interest against the countervailing public interest in the administration of justice in the particular case and to refuse disclosure if the balance tilts that way. This broad submission, or something rather like it confined to information imparted in confidence, was adopted in his dissenting judgment by Lord Denning M.R., but as I have already indicated there is the authority of this House that confidentiality of itself does not provide a ground of non-disclosure. Nor am I able to accept the proposition that the basis of all privilege from disclosure of documents or information in legal proceedings is to prevent the breaking of confidence. For my part, I think this House would be unwise to base this decision in the instant case on a proposition so much broader than is necessary to resolve the issue between the parties."

9. I think that it is important to bear in mind that Peach's case concerned an inquest and not adversarial legal proceedings as was the case in D. v. The N.S.P.C.C.⁽³⁾. It is important to bear in mind that a Coroner's Inquiry or Inquest is a limited inquisitorial proceeding. The scope of the investigation undertaken by the Director of Marine under the Shipping and Port Control Ordinance Cap. 313 is much wider and would include a large quantity of material which would be in no way germane to the Coroner's Inquiry. In his decision, the Coroner attempted to distinquish Peach's case from the present proceedings. In Peach's case the police had at all times resisted the requests which had been made for copies of the statements to be furnished. In the present proceedings, the Director of Marine had adopted a neutral attitude and had left it to the Coroner to make a ruling as to whether the statements should be disclosed to all interested parties. However this overlooks the fact that the Director of Marine did according to the affidavit evidence promise confidentiality at the time these statements were made. It is also pertinent to observe that the Director of Marine was not legally represented at the Coroner's Inquiry and did not have the benefit of legal advice. Had he been legally represented, it seems almost certain that he would have resisted the application for the statements to be dislcosed to all interested parties. In any event, I am satisfied that the reasons given by the Coroner for not following Peach's case were not convincing and that he should not have departed from the principles which had been propounded.

Section 60(2) of the Shipping and Port Control Ordinance Cap. 313

10. This subsection reads as follows:

"No answer given by a person pursuant to a requirement imposed under Subsection 1(e) shall be admissible in evidence against that person or the husband or wife of that person in any proceedings."

11. Mr. Steel urged that the subsection should be literally interpretated. The answers which had been given by members of the crew should not be used against them in the Coroner's Inquiry. If the interested parties were to use the statements for the purpose of contradicting members of the crew when they gave evidence the effect would be that the answers would be used against them. An illustration of "used against" a person could be seen from the case of R. v. Bruce and others⁽⁴⁾. Stephenson L.J. considered this at page 1258:

"The pecularity of that evidence is that it contradicted McGuiness evidence undermined part of his defence and damaged his creditability but it did not contradict his evidence that he took no money undermined the case for the prosecution and made it not more but less likely that there was a robbery and McGuiness would be convicted of the offence with which both were charged. Did Bruce give that evidence 'against' McGuiness? Yes in the sense that he contradicted MuGuiness and said that that part of his defence which agreed with the prosecution that there was a plan to rob a Pakistanee was untrue, no, in the sense that he supported McGuiness' defence that he did not rob Mr. Lecerf and that he provided McGuiness with a different and possibly a better defence to the charge than he himself had put forward. We cannot help thinking that reading the words of subparagraph (iii) in their context in their ordinary meaning a lawyer and a layman would alike regard Bruce's evidence denying that there are a plan to rob as given more in McGuiness's favour than against him. On balance it exculpated him of robbery and did not incrininated him. We think it right to give the words their ordinary meaning, if we can without adding any gloss to them."

12. Mr. Clark's answer to this was that it was by no means certain that the statements would be used against members of the crew. For example, they might be used for the purpose of refreshing their memory. If there was any dispute as to whether statements were being used against any of the members of the crew the Coroner would be able to resolve the matter and make a ruling that the statements would not be used in any way which was against the members of the crew. Mr. Duffy who was leading the Coroner's Officer, Mr. Frank Wong, submitted that unless the statement could be used in the Coroner's Inquiry an absurd situation could arise. A member of the crew might give conflicting and contradictory evidence at the Inquiry and this might be diametrically opposed to the contents of the statements he had given to the Director of Marine. He asked rhetorically whether by any stretch of the imagination it was tolerable that this situation should be allowed to pertain. One answer to this question would be that as the Coroner's Officer is already in undisputed possession of the statement he himself could put the statement to the witness and cross-examine him upon it. A further argument advanced by Mr. Duffy was that the legal representatives of interested parties may have greater skill and expertise in Marine matters than the Coroner's Officers and it would therefore be advantageous to afford them an opportunity of putting questions to the members of the crew on the statements they had made. I do not see much merit in his argument as Legal Department clearly has the resources to enable it engage the services of the most highly skilled practitioners with requisite expertise.

13. I do see that considerable problems are likely to arise as a result of the Director of Marine's decision to give copies of the statements to the Coroner's Officer. It may well be the case that the advantages of supplying the copies outweigh the disadvantages. There does, however, appear to be a much greater risk of these statements being used against the members of the crew if copies are furnished to all interested parties. Mr. Clarke argued that Rule 14 of the Coroner's Rules which requires the Coroner to warn a witness against self-incrimination would provide witnesses with sufficient protection against their giving evidence which could be used against them. I do not think that this is correct. If Section 60(2) is to be complied with in its widest context, the interests of members of the crew may be detrimentally affected in other ways than self-incrimination. I can see considerable merit in the argument that Section 60(2) of itself provides sufficient grounds for withholding the statements from interested parties.

Public Interest requires that confidentiality be honoured

14. In arguing this ground of opposition, Mr. Steel emphasized the importance of distinguishing public interest from private interest. The principles governing confidentiality in relation to the public interest were considered in depth in D. v. N.S.P.C.C.⁽³⁾. I consider that it may be helpful for us to set out the principles which were propounded by Lord Edmund-Davies at page 618 and 619 of the report:

It is clear from the passage above cited that it is necessary for the court to undertake what can best be described as a balancing act bearing in mind the various factors referred to by Lord Edmund-Davies. As to how this balancing act is undertaken is illustrated by Lord Denning in his judgment in Nellson v. Laugharne⁽⁷⁾

15. What is the public interest in the present litigation? The evidence relating to the public interest is contained in paragraph 15 of Captain Pyrke's affidavit which was sworn on the 17th December. The paragraph reads as follows:

"15. The most important objection to such disclosure is that it will inevitably inhibit Marine Department's investigation into future incidents whether under the provisions of the Merchant Shipping Ordinance Cap. 281 or the Shipping and Port Control Ordinance Cap. 313. Whilst I accept that under Section 60(1) (e) of the Shipping and Port Control Ordinance, Marine Department has the power to require answers to questions put (with a criminal sanction in the event of refusal) nevertheless the fact remains that we invariably obtain fuller and franker answers and disclosure when it is made clear that these statements are to be used solely for the purpose of Marine Department's own inquiries into the incidents. If it became the practice for such statements to be disclosed to all parties, I have no doubt that in a case such as this, full and frank disclosure and our inquiries would be seriously frustrated. This cannot be in the public interest."

16. I have generally considered the scope of investigations undertaken pursuant to the provisions contained in the Shipping and Port Control Ordinance Cap. 313. There is no doubt in my mind that what is intended under the Ordinance is that the Director of Marine should be enabled to obtain swiftly all pertinent information relating to incidents which occur within his jurisdiction to ascertain the material facts surrounding the incident so as to enable him to immediately take such action as may be necessary to prevent any recurrence and take any other action which may be appropriate. It is highly desirable that the Director of Marine should not in any way be fettered in achieving these objectives. It is therefore necessary to consider what effect disclosure of the statements made by members of the crew is likely to have upon future investigations which will be undertaken by the Director of Marine. Some assistance may be derived from a passage which appears on page 637 the report of the case of Lonrho Limited v. Shell Petrolium⁽⁸⁾:

"Many Judges have some time in their lives had experienced of conducting official inquiries or investigations in private. Even without the Minister Certificate I should not have needed evidence to satisfy me that the likelihood of success of inquiries of this kind in discovering the truth as to what happened is greatly facilitated if persons who know what happened come forward to volunteer information rather than waiting to be identified by the inquiry itself as likely to possess the relevant information and having it extracted from them by question and answer. Nor would I need any evidence to satisfy me that without an assurance of complete confidentiality information is less likely to be volunteered; particularly where the inquiry is directed to matters that are the subject matter of a pending civil action to which the possessor of the information is a defendant."

17. As against this, Mr. Clarke argued that it was essential that there should be a full inquiry as to how it had been possible that a ship should run into a jetty. It was a matter of considerable importance and public interest that all of the truth should be ventilated. He also suggested that it was necessary to draw a distinction between the position of the master of the ship and members of the crew. In his ruling the Coroner had held that the statements made by the master of the ship should not be divulged. He did not now wish to take issue with this finding. The position of the members of the crew was entirely different. It appeared to be most unlikely that any legal proceedings would be instituted against any members of the crew and accordingly it was difficult to see how their interests could be detrimentally affected by disclosure of their statements. It would clearly be of assistance to all interested parties to have possession of the statements of members of the crew and put questions to them based on the statements when they appeared as witnesses in the Coroner's Inquiry.

18. Mr. Clarke also argued that it was by no means certain that the statements would be used in a manner which was in any way prejudicial to the members of the crew. For example, the statements might be used to refresh their recollection of events. Surely it would be preferable for the Coroner to exercise his discretion as to the extent to which the statements might be referred to.

19. I have attempted to perform the balancing act referred to in the cases cited. I have no doubt that the balance lies in favour of non-disclosure. All of the witnesses will be available to give evidence. The incidents occurred on the 10th October and witnesses should not encounter much difficulty in recollecting events which occurred surrounding the accident. In addition to this, Mr. Frank Wong, the Coroner's Officer does have copies of the statements available to him and he will be able to decide the extent to which the statements can assist him in putting questions to the witnesses. He would also be able to take such action as may be necessary or possible if there are conflicts between the contents of the statements and the evidence which is given at the Coroner's Inquiry. No sufficient case has been made out for disclosure to other interested parties bearing in mind the confidentiality which attaches to these statements.

Conclusion

20. I accept that on hearing a judicial review we are exercising basically a supervisory function. The pertinent question is not how we ourselves would have exercised the discretions which were exercisable by the Coroner. The question is whether it is manifest from the record of the Coroner's decision either that he exceeded his jurisdiction or that he erred in law. For the reasons I have given I am satisfied that the Coroner should not have ordered the disclosure of the statements of members of the crew. They were the property of the Marine Department and their disclosure would constitute a breach of trust. He failed to take cognisance of the provisions contained in Section 60(2) of the Shipping and Port Control Ordinance Cap. 313 and finally he erred in failing to have regard to the public interest which required that confidentiality should be honoured. This application will accordingly succeed. We will hear parties as to the exact form our order shall take and as to costs.

Representation:

Mr. Steel, Q.C. Mr. A. Dicks, Mr. G. Mackay (Johnson, Stokes & Master) for all applicants.

Mr. N. Kaplan, Mr. N. Strawbridge for Marine Department.

Mr. J. Duffy, Mr. Frank Wong for Coroner.

Mr. A. Clarke, Q.C., Mr. Ronny Tong (D.L.A.) for relatives of deceased.

(Ince & Co.) for Green Island Cement Co. Ltd.

Mr. William Stone (H.F. & W.) for Pioneer Cement (H.K.) Ltd.

(1) 1981 2 W.L.R. 722

(2) 2 W.L.R. 497

(3) 1977 1 A.E.R. 589

(4) 1975 1 W.L.R. 1252

(5) [1948] 1 All E.R. 85, [1948] 1 K.B. 349

(6) [1968] 1 All E.R. 874, [1968] A.C. 910

(7) 1981 2 W.L.R. 537

(8) 1980 1 W.L.R. 627