Cheung Wai Mei v. Michael Pik-kiu Chan, Esq, Coroner

HCAL 24/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 24 OF 2007

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

BETWEEN

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

Before : Hon Hartmann J in Court

Date of Hearing : 9 March 2007

Date of Judgment : 9 March 2007

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

J U D G M E N T

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

1.This is an application for leave to apply for judicial review.  It has come before me as a matter of urgency.  The decision sought to be challenged is that of a coroner given in the course of an on-going inquest.  The inquest, which is being held with a jury, is investigating the cause of, and circumstances connected with, the death of four persons.

2.The applicant is the mother of one of those four persons.  Through her counsel, she has applied to the coroner to discharge the jury and to split the present single inquest into three separate inquests, each of them to be heard with new juries.  The application has been made on the basis of an asserted common law principle that concurrent inquests should only be held when the deaths being investigated are linked by a single, common incident; for example, a train crash or vessel going down.  It is accepted that in the present inquest there is no such nexus. 

3.Having heard submissions, the coroner has refused the application. It is that ruling which the applicant now seeks to have quashed.

4.The four deaths being investigated by the coroner and jury occurred in three incidents separated by geography and time.  But that is not to say there are no linking factors of material relevance nor that there can be no common cause.  Even the briefest consideration of the evidential background shows that to be the case.

5.The first death being considered is that of a police officer, PC Leung.  In March 2001, PC Leung was found shot to death in a housing estate where he had gone to investigate a complaint.  There is evidence, I am told, that he was shot with his own service revolver, the weapon being removed from the scene.

6.The second death being considered is that of a security guard by the name of Khan who was shot to death in the course of a robbery at the bank where he was employed.  His killing took place in December 2001.  There is evidence, I am told, that Mr Khan was shot with the revolver taken from PC Leung.

7.The third and fourth deaths being considered are those of another police officer, PC Tsang, and the applicant’s son.  In March 2006, there was, it seems, a confrontation of some sort in a pedestrian subway.  Shots were exchanged.  Both men died in the gunfight, a third man, a police officer patrolling with PC Tsang, was wounded.  There is again evidence, I am told, that the revolver taken from PC Leung was found at the scene.  It was found under the body of the applicant’s son.

8.On behalf of the applicant, Mr Arthur Yip, does not contend that there are no common denominators.  As I have understood his argument, it is that there is a binding principle of common law that concurrent inquests are only permissable when they arise out of the same incident or event.  In my opinion, Mr Yip puts it too high when he speaks of it being a binding principle.  On my reading of the authorities, I would put it no higher than a sensible rule of practice, one that may help to avoid procedural irregularities or the placing of too heavy an evidential burden on a jury.  In this second respect, it is to be remembered that, although inquests may be held concurrently, the inquest in respect of each deceased is a separate one.  Concurrent inquests therefore run the risk of complexity.

9.The earliest authority cited to me is that of In re Mitchelstown Inquisition (1888) 2 LR Ir.279, the suggestion being that the principle finds its genesis in this judgment.  But I do not see that.  This judgment, as the headnote makes clear, is founded on irregularity of proceedings :

“During an affray, in which shots were fired by certain constables, A was killed, and B and C were mortally wounded by gunshots.  A jury was summoned, pursuant to the precept of the District Coroner, and sworn upon an inquest upon the body of A.  After viewing the body the inquest was adjourned to a subsequent day.  B died before the day to which the inquest stood adjourned, and the jury sworn upon A’s inquest were, by direction of the Corner, summoned to hold an inquest upon B; and upon C’s death, which occurred two days later, the same jury proceeded to investigate into the circumstances attending the deaths of the three deceased persons, notwithstanding the protest of counsel who appeared for the constables:-

Held, on motion to quash the inquisition, that the proceedings were irregular.”

10.No such irregularity occurred in the present inquest.  The jury was sworn at one time to enquire concurrently into the four deaths.

11.From what has been placed before me, the most direct guide to the law today is to be found, I think, in a brief extract from Levine on Coroners’ Courts, 1999 ed, page 54, para.9-08, which reads :

“There are occasions when there are two or more deaths which have occurred in the same event or from a common cause, or they are otherwise materially linked.  The coroner may direct that it is suitable for the inquests into the deaths to be held concurrently.”

12.No mention is made by the author of the common law restriction advocated by Mr Yip on behalf of the applicant.  There must, of course, be some evidential unity that binds the concurrent inquests and it must be substantial.  But I do not see that the ‘rule of practice’, as I have described it, goes further than that.

13.I pause to observe that the Coroners Ordinance, Cap.504, does not forbid concurrent inquests.  Whether there is sufficient evidential unity to warrant concurrent inquests is therefore a matter to be decided by the coroner in the exercise of his discretion.  It is for the coroner to decide how best proceedings should be managed in his court.  Only if the coroner’s exercise of discretion is wrong in law will this court intervene.

14.The question, therefore, that I have to ask myself is whether the material that has been placed before me discloses matters which, on further consideration, might demonstrate an arguable case to show that the coroner has, in fact, acted outside of his powers in coming to the decision he did.

15.It is not an onerous test.  That does not mean, however, that leave must be granted in all cases except those that are frivolous, vexatious or patently doomed to failure.  This court must be satisfied in all the circumstances, including the fact, in my view, that this inquest is already fairly well advanced, that there is a case presented which is substantive enough to be fit for further investigation at a full inter partes hearing.  In my judgment, that case has not been presented.

16.It seems plain to me that the coroner was entitled within the parameters of his discretion to conclude that there was sufficient evidential unity – qualitative and/or quantitative – to warrant holding the concurrent inquests.  Clearly, there are matters which rationally may be said, potentially at least, to constitute a material link between the four deaths.  Whether this court would have exercised the coroner’s discretion in the same manner is not to the point.  The exercise of discretion was plainly intra vires.  That determines the matter.

17.Mr Yip’s principal concern appears to be that, if the concurrent inquests go ahead, the jury may be prejudiced against the applicant’s son : it may find some evidential link between the deaths which will allow it to condemn him.

18.But an inquest, whether heard concurrently with other inquests or not, is not a criminal trial.  As Lord Land CJ expressed it in R. v. South London Coroner, ex parte Thompson (1982) 126 S.J.625, DC :

“Once again it should not be forgotten than an inquest is a fact finding exercise and not a method of apportioning guilt.  The procedure and rules of evidence which are suitable for one are unsuitable for the other.  In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts.  It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.”

19.That being said, while an inquest is limited in its scope, it is not a sterile process without value.  As Lord Lane put it in the judgment to which I have just referred :

“The function of an inquest is to seek out and record as many of the facts concerning the death as public interest requires.”

20.Mr Yip clearly is concerned that the jury will, even with a proper discretion from the coroner, be so prejudiced that it will make unlawful findings.  That may be his fear, expressed of course on behalf of the applicant, but there is no evidence that it is inevitable.

21.The jury system is integral to our system of justice.  Jurors are not like ducklings straight out of the egg who will be genetically imprinted by the first piece of prejudicial evidence that comes their way.  Jurors, under proper instructions, are quite capable of focusing on what the law requires them to determine and to determine it in the manner that the law requires.

22.There is no suggestion that the jury in these concurrent inquests is faced with an impenetrable jungle of evidence or that the hearings will be interminable. 

23.Finally, I must take into account that, in principle, judicial review should be a remedy of last resort.  The integrity of the coronial process must be respected.  This court – the administrative court – is not some sort of ‘video umpire’ to which each and every ruling made in proceedings in lower courts can be referred for confirmation that they comply with law.  If at the end of the concurrent inquests the applicant seeks further remedies they are not barred to her.

24.For the reasons given, I am satisfied, to use legal shorthand that no prima facie arguable case has been presented and that the application must be refused.

25.Mr Zervos, who appears on the instructions of the Department of Justice to give such assistance as I may require, seeks an order for costs.  I am not going to make any order.  The fact of the matter is that, as our law presently stands, an application for leave to apply for judicial review is made ex parte and the respondent is a putative respondent until leave is granted.  It behoves public authorities from time to time to lend assistance to the court by offering such assistance as the court may require.  That is the discharge of a public responsibility.  Although there may be occasions when the court, in the exercise of its discretion, considers that an application for leave is so frivolous, so vexatious or motivated for a tactical purpose that indicates bad faith that it should award costs, nothing of that kind can be asserted in the present case.  Clearly, those who represent the applicant have been motivated by a desire to protect her best interests and the reputation of her deceased son.

Mr Arthur Yip, instructed by Messrs Fan Wong & Tso, for the Applicant

Mr Kevin Zervos, SC, SADPP, of the Department of Justice, for the Respondent