Secretary for Justice v. William Ng, Esq., A Coroner

HCMP690/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 690 OF 2009

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BETWEEN

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Before : Hon Fok J in Court (Open to Public)

Date of Hearing : 16 November 2010

Date of Judgment : 2 December 2010

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J U D G M E N T

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Introduction

1.On 2 November 2006, tragically, Wong Ho Leong Angus, who was only 5 years old, died in the course of an operation at Queen Mary Hospital.  The Coroner has declined to hold an inquest into the death of Master Wong (“the Deceased”).  The Secretary for Justice (“SJ”) now applies, under section 20(1)(a) of the Coroners Ordinance (Cap. 504) (“the Ordinance”), for an inquest to be held into his death.

The facts

2.The Deceased was born on 25 December 2000.  In June 2006, he complained of having had on and off coughing for several months.  A chest x-ray showed a right middle zone mass, posterior to the heart.  On 3 August 2006, a CT scan showed a right posterior mediastinal solid attenuation non-enhancing mass over the right paraspinal region from T5 to T10.

3.On 23 September 2006, the Deceased was admitted to Queen Mary Hospital Paediatric Medical Unit for an upper respiratory tract infection and hospitalised for two days.  The Oncology Team was consulted on the management of the mediastinal mass.  The team proposed more investigations including blood tests and an MRI scan.

4.On 4 October 2006, an MRI scan showed a well-circumscribed soft tissue mass which was paraspinal in location, measuring 8 cm x 6.5 cm x 4.4 cm in size.  The Deceased was followed up by a consultant paediatric oncologist and the overall plan was to have definitive surgery or a tumour biopsy.

5.According to the Deceased’s mother, Madam Lau Wing Mui, she took her son to the Surgical Department at Queen Mary Hospital on 18 October 2006 to discuss the findings of the MRI scan.  A Dr Lam said the lump in her son’s chest was a tumour, about 8 cm in diameter.  He indicated that a minimally invasive surgical operation would be performed and, if that did not work, a thoracotomy would be performed.

6.On 28 October 2006, Madam Lau was contacted by staff of Queen Mary Hospital and asked to bring her son to the hospital for examination as he would undergo an operation on 2 November 2006.  Conflictingly, on 31 October 2006, a nurse from Queen Mary Hospital telephoned Madam Lau and asked her to take her son to the hospital on 20 November 2006 for a PET scan.  When Madam Lau mentioned the proposed operation on 2 November 2006, the nurse told her that it would be preferable to have the scan before the operation, but that there was insufficient time to do that before the scheduled date of the operation. Madam Lau asked to speak to a doctor and enquired whether it was acceptable to undergo the operation without having the scan first.  She says that the male doctor replied to her enquiry, “It doesn’t matter.  Go ahead.  There is not much influence.”

7.On the morning of 1 November 2006, Madam Lau and the Deceased went to Queen Mary Hospital. Madam Lau saw Dr Lam and asked him about the PET scan.  He was unaware about this and having checked the computer records told Madam Lau that it did not matter.

8.On the afternoon of 1 November 2006, a female doctor of the Anaesthesiology Department said to Madam Lau that she did not know why a minimally invasive surgery was to be performed for a tumour of such a big size. The same doctor repeated that view to Madam Lau on 2 November 2006 before the operation commenced.

9.The operation took place on 2 November 2006.  The principal surgeons were a Dr P. Yip and a Dr K. Wong.  According to Madam Lau, Dr Lam was also involved and she noticed from their respective nametags that Dr Lam and Dr Wong were medical officers and Dr Yip was a senior medical officer.

10.According to the Medical Report written by Dr Wong, the tumour was seen to be well-circumscribed with no obvious invasion to the surrounding structures and it was deemed resectable.  The procedure was uneventful for the first hour and the tumour was more than halfway freed from adherent tissues when a tumour vessel was seen at the inferior aspect.  This was apparently divided with no problems.  A further large tumour vessel was revealed and, during control of this vessel for clipping, sudden bleeding occurred.  This was probably due to a combination of factors including the sagging of the tumour due to gravity resulting from the prone position of the Deceased during the surgery and further strain caused by traction from a retractor used for better exposure of the tumour.  The bleeding became uncontrollable and consequently various senior surgeons were called to attend, including Prof. P. Tam (the chief of paediatric surgery), Prof. S. Cheng, Prof. S.T. Fan and Dr L.C. Cheng.  Unfortunately, despite the eventual successful control of the bleeding, the Deceased suffered a cardiac arrest due to significant bleeding and haemodilution causing irreversible shock and severe acidosis.  Although CPR was administered, cardiac rhythm could not be regained and the Deceased was pronounced dead at 17:37 hours on 2 November 2006.

11.An autopsy was performed stating the cause of death to be hypovolaemia secondary to aortic tear.

12.A death report recommending an inquest was submitted to the Coroner on 23 April 2007.  The Coroner directed a medical expert opinion on the surgical and medical management of the Deceased on 17 May 2007.  Accordingly, an expert opinion was sought from Dr Anthony P.C. Yim, specialist in cardiothoracic surgery and Director of the Minimally Invasive Centre at the Union Hospital.

13.On 17 December 2007, Dr Yim submitted his report.  His opinion is important and I therefore set out verbatim the section of his report under the heading “Comments”:

“Although this case involves a technical mishaps [sic] during surgery, on closer study, it reflects a serious mistake in surgical judgment. Preoperative investigations which included CT thorax, MRI and serum marker are strongly suggestive of a neurogenic tumour, and there was little doubt that surgery would be necessary as it was already displacing the airway.

The surgeons consented for resection of this large tumour but the option for the ‘thoracoscopic’ approach was a bad mistake for severe [sic – presumably, several] reasons. First, the tumour was huge and measured 8 x 7.5 x 5 cm (from the resected specimen). Even if the surgeons successfully resected the tumour, they certainly would have to perform a thoracotomy to remove the specimen. Therefore, I couldn’t see any point at all with thoracoscopic surgery through 5 mm ports. Second, although VATS or thoracoscopic surgery is now an established approach to the management of a wide variety of chest conditions, it requires special training for the surgeons in order to master this technique. For a 5 year-old boy with a 10 cm solid chest tumour, there would be little room for the surgeons to man[o]euvre the instruments. Traction and counter-traction are important during dissection, but for a mass of that size, it would be difficult to apply the optimal traction/counter-traction. As a result, one of the feeding arteries to the tumour was avulsed from the aorta resulting in the fatal outcome. Thirdly, positioning the patient prone put traction on the feeding vessels due to the weight of the tumour once it is partially mobilized. It also renders control of bleeding from the aorta a lot more difficult.

The case raised the questions whether the initial surgeons carrying out this operation was [sic] properly trained or supervised.  I believe the risks of this operation were seriously underestimated by the surgeons and the patient and his family may not have been properly informed of the risks and complications of surgery, as well as alternative surgical approaches.”

14.On 2 April 2008, Dr Yim’s report was submitted to the Coroner for his consideration.  On 13 May 2008, the Coroner decided that no death inquest should be held in respect of the Deceased.  On 15 May 2008, the Coroner wrote via his clerk to the parents of the Deceased to inform them of his decision not to hold an inquest.  He explained that a coroner’s court was forbidden at law to frame a finding in such a way as to appear to determine any question of civil liability and that a coroner was also required at law to disallow any question that related only to civil liability at an inquest.  Hence, he advised, a coroner’s court was not an appropriate venue to resolve complaints against the doctors treating the Deceased and that the proper venues for such complaints were the Hong Kong Medical Council and other civil courts in Hong Kong.

15.By a letter apparently dated 24 June 2008, Madam Lau replied to the Coroner pointing out that an inquest could result in a finding of death by misadventure rather than death by accident and that an inquest could result in useful recommendations to be made by the Coroner for the jury to improve the medical system or prevent the recurrence of similar fatalities.

16.On 4 July 2008, the Coroner replied via his clerk indicating that he would maintain his decision not to hold an inquest.  As to the difference between accident and misadventure, the Coroner preferred to follow the recent English authorities to the effect that the distinction between these concepts was “without purpose or effect” and that “misadventure” should be suppressed in favour of “accident”.  Further, as the crux of the unfortunate incident concerned only the medical judgment of the doctors in a particular medical case, the Coroner was also of the view that no meaningful recommendation could come from the jury.  His view was that holding an inquest in such circumstances would serve no public interest and he reiterated that the proper venues for addressing Madam Lau’s complaints were the Hong Kong Medical Council and other civil courts in Hong Kong.

17.On 1 September 2008, the Department of Justice (“the DOJ”) wrote to the Coroner asking him to reconsider his decision not to hold an inquest.  The DOJ expressed the view that it may well have been serious surgical error that led to the Deceased’s death so, in all the circumstances, it was suggested it would be in the public interest for an inquest to be held in this matter.

18.On 22 September 2008, the Coroner replied to the DOJ.  He stated that, in his view, the purpose of an inquest was to find the facts in connection with the cause and circumstances of the deceased’s death: in short, what happened and what did not happen?  In the present case, it appeared to the Coroner that the cause of and circumstances connected with the Deceased’s death were clearly known and it was evident that the death was a result of an accident, albeit it was Dr Yim’s opinion that the decision to resect and remove the tumour by the thoracoscopic approach was a serious mistake in surgical judgment.  However, it was not the function of an inquest to find out whether the surgeons’ decision was a serious mistake and, if so, whether they were properly trained or supervised, or whether they had underestimated the risks of the thoracoscopic surgery.

The present application

19.By Originating Summons issued on 7 April 2009, naming the Coroner as respondent, the SJ as applicant seeks an order that an inquest be held into the death of the Deceased pursuant to section 20(1)(a) of the Ordinance (the provisions of which are set out below).

20.In the supporting affidavit, the SJ’s position is set out.  The Coroner is not criticised in respect of his view concerning the difference between “death by accident” and “death by misadventure”.  However, it is suggested that the Coroner “apparently erred in prematurely concluding that no meaningful recommendation could come from the jury”.  Although an inquest might be of limited value to the family of the Deceased itself, it was contended that there was nonetheless “a wider public interest in the avoidance of such surgical situations in the future”.  The SJ maintained that it appeared that a serious mistake had been made by the surgeons in this case and that there were lessons that needed to be learned.  Even if an inquest were to endorse the view of the Coroner that the death was accidental, it would be open to the Coroner or the jury to make recommendations under section 44(2) of the Ordinance designed to ensure that suitable safeguards were put in place to prevent similar mistakes occurring.

21.At a directions hearing on 16 December 2009, Chu J ordered that an amicus curiae be appointed.  Mr Bernard Man was duly appointed as the amicus and I am grateful to him for his able assistance in this matter, as well as to Mr David Leung, Senior Assistant Director of Public Prosecutions, appearing on behalf of the SJ.  Following the direction that an amicus be appointed, the Coroner informed the Registrar of the High Court that he would remain neutral and would no longer take part in, and would abide by, the outcome of the proceedings.

The issues on this application

22.It was common ground between Mr David Leung and Mr Man that the following questions arise for determination in this application:

(1)   What is the proper approach on an application under section 20 of the Ordinance?

(2)   Whether, applying that approach, the court should order an inquest to be held into the death of the Deceased?

Provisions of the Ordinance relevant to this application

23.The Ordinance was enacted on 4 May 1998.  It repealed and replaced the Coroners Ordinance (Cap. 14).

24.Part IV of the Ordinance, comprising sections 14 to 20, is entitled “Circumstances in which coroner may or must hold inquest”.

25.Section 14 provides:

“(1) Where –

(a) a person dies –

(i) suddenly;

(ii) by accident or violence; or

(iii) under suspicious circumstances; or

(b) the dead body of a person is found in or brought into Hong Kong,

and whether or not the death of the person is a reportable death, a coroner may, if he considers that an inquest is necessary, hold an inquest into the death, with or without a view of the body as he thinks fit.

(2) Subject to subsection (3), a coroner may hold an inquest under this section without a jury or, if he thinks fit, with the jury selected in accordance with section 23.

(3) A coroner shall not hold an inquest under this section without a jury unless –

(a) subject to section 28(2)(B), he has taken into account the representations, if any, made by or on behalf of any properly interested person on the matter; and

(b) he is satisfied that holding the inquest without a jury is not a less just manner of disposing of the inquest than holding the inquest with a jury.

…

(5) Where, in relation to the death of a person to which this section applies, a coroner considers that an inquest is not necessary, he shall forthwith upon the request of the Secretary for Justice forward to the Secretary for Justice all the evidence which he has considered in relation to the death.”

26.Section 15 provides:

“(1) Where a person dies whilst in official custody, a coroner shall as soon as practicable hold an inquest into the death.

(2) A coroner shall hold an inquest under this section with a jury selected in accordance with section 23.

…”

27.Section 16 provides:

“A coroner shall hold an inquest into the death of a person when required by the Secretary for Justice to do so.”

28.Section 20(1) provides:

“Where the Court of First Instance, upon the application in open court of a properly interested person or the Secretary for Justice, is satisfied –

(a) that a coroner has failed to hold an inquest which ought to be held;

(b) where an inquest has been held by a coroner, that by reason of fraud, rejection of evidence, irregularity of proceedings (including a failure to comply with section 14(3)), insufficiency of enquiry, or otherwise, it is necessary or desirable that another inquest should be held; or

(c) where an inquest has been held by a coroner, that by reason of the discovery of new facts or evidence it is necessary or desirable that another inquest should be held,

the Court of First Instance may order an inquest to be held into the death of a person and, where an inquest has been already held, may quash the findings of the coroner or jury at that inquest already held.”

(A “properly interested person” is defined in section 2 of the Ordinance as being, in relation to the death of a person, a person who belongs to a class or description of person specified in Schedule 2 in respect of the deceased. The persons in Schedule 2 include a person who is a parent, spouse, sibling or child of the deceased.)

29.Part VI of the Ordinance, comprising sections 27 to 45, deals with “Inquests”.

30.Section 27 provides:

“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.”

31.Section 44 provides:

(1)       Neither a coroner nor a jury at an inquest shall –

(a)   frame a finding in such a way as to appear to determine any question of civil liability;

(b)   subject to subsection (2), express an opinion on any matter other than a matter referred to in section 27.

(2)       A coroner or a jury at an inquest may make a recommendation designed –

(a)   to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held;

(b)   to prevent other hazards to life disclosed by the evidence at the inquest;

(c)   to bring to the attention of a person who may have power to take appropriate action any deficiencies in a system or method of work which are disclosed by the evidence at the inquest and which are of public concern.

(3)       A coroner at an inquest shall disallow a question which in his opinion –

(a)   relates only to civil liability;

(b)   is not relevant; or

(c)   is otherwise not a proper question.”

The proper approach on an application under section 20

32.I have set out above the provisions of section 20(1) of the Ordinance.  It is plain that the section gives the Court of First Instance a discretion to order an inquest to be held into the death of a person where “a coroner has failed to hold an inquest which ought to be held”.  However, section 20(1)(a) does not give guidance as to the approach or standard of review to be applied by the Court of First Instance on such an application.

33.The approach or standard of review under section 20(1)(a) of the Ordinance does not appear to have been the subject of any previous judicial determination.  The combined researches of Mr Leung and Mr Man identified only one decision of the Court of First Instance on an application under section 20 of the Ordinance, namely the decision of Hartmann J (as he then was) in Secretary of Justice v Andrew Chan, Esq., a Coroner, unrep., HCAL2508/2005, 30.11.05, but there is no discussion in that case of the appropriate approach under the section.

34.In England and Wales, section 13 of the Coroners Act 1988 provides that where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner that “he refuses or neglects to hold an inquest which ought to be held”, the High Court may order an inquest into the death.

35.It has been held, in Terry v East Sussex Coroner [2002] 2 QB 312, that the court could not conclude that an inquest ought to be held under the Coroners Act 1988 unless the Coroner had misdirected himself in law or his factual conclusion was irrational.  Simon Brown LJ (as he then was) addressed the submission that the court had a wide jurisdiction under section 13 of the Act and that it could decide that “an inquest … ought to be held” even if the Coroner’s own conclusion that there was no reasonable cause to suspect that the death was unnatural could not be stigmatised as irrational.  At §21 of his judgment, he said:

“I would reject this argument. Rather it seems to me that the selfsame test should apply under section 13(1)(a) as applies on a judicial review challenge. The Court cannot conclude that ‘an inquest … ought to be held’ unless the coroner has misdirected himself in law or his factual conclusion is irrational. R (Touche) v Inner London North Coroner [2001] QB 1206 itself had been brought before the court as a section 13 application as well as a judicial review challenge (see p. 162C) yet no one suggested that the court’s powers of intervention there were wider under the statute than at common law—indeed, the section 13 application was simply sidelined. Not only would it be most unfortunate if a different test were to be applied to the two forms of application, but to my mind it would also offend the language of the statute: I do not think that a coroner could properly be said to have ‘refuse[d] or neglect[ed] to hold an inquest’ unless he was at fault and this would not be the case unless the common law test were satisfied.”

36.This conclusion was recently adopted by the English Divisional Court in Connah v Plymouth Hospitals NHS Trust & Ors [2010] EWHC 1727 at §22. There, Laws LJ held that, on a challenge to a coroner’s decision not to make a report to the Secretary of State under section 15 of the Coroners Act 1988, the claimant would have to demonstrate that the decision was irrational in the public law sense.

37.Mr Man drew these English authorities to my attention in order to provide the basis for a possible argument that might be advanced on behalf of the Coroner that the test to be applied in respect of an application under section 20(1)(a) of the Ordinance should be the same as that applied in respect of section 13 of the Coroners Act 1988, i.e. the judicial review standard.

38.Although it is not necessary to decide if the reasoning in Terry v East Sussex Coroner is correct, I agree with Mr Man that there is no a priori reason why the standard of review under section 13 of the Coroners Act 1988 should be the same as the standard on a judicial review, however “fortunate” that conclusion would be.  Secondly, it is not clear that there is necessarily any fault on the part of a coroner under section 13 of the Coroners Act 1988 where he “neglects to hold an inquest” as opposed to where he “refuses … to hold an inquest”.  Refusing to do something may suggest fault, but it does not follow that neglecting to do something means the Coroner was necessarily at fault.

39.Both of these points would apply in respect of section 20(1)(a) of the Ordinance.  First, there is nothing in its wording that imports the judicial review standard on an application under section 20(1)(a).  All the section requires is that the Court of First Instance form the view that “an inquest ought to be held”, not that the Coroner has made any particular error in reaching his decision not to hold an inquest.  Indeed, there is no reason to think that there might be parallel judicial review proceedings in respect of a decision by a coroner not to hold an inquest so that there would be a need to have the same standard of review on an application under section 20(1)(a) of the Ordinance as on the judicial review application.  This is because, given the existence of the statutory power to apply to the Court of First Instance for an order that an inquest be held, it is likely that any application for leave to apply for judicial review against a coroner’s decision not to hold an inquest would be met by the contention that judicial review proceedings should not be invoked before the applicant had exhausted all statutory remedies, including an application under section 20(1)(a) of the Ordinance.

40.Secondly, as regards the concept of fault, the wording of section 20(1)(a) of the Ordinance does not impose the requirement of any element of fault on the part of the Coroner in failing to hold an inquest.  The court’s discretion is engaged where the Coroner has simply failed to hold an inquest which ought to be held and there is no requirement, on the wording of the Ordinance, that he shall have been at fault in failing to do so.

41.In the circumstances, I hold that, on an application under section 20(1)(a) of the Ordinance, the Court of First Instance is required to approach the matter on a de novo basis by asking itself whether, on the evidence presented, it is satisfied that the case is one in which an inquest ought to be held.  It does not need to be satisfied that the case is one in which an inquest ought to be held but that the Coroner, in reaching his decision not to hold an inquest, has committed one of the categories of errors for which the court may grant relief on a judicial review.

42.I would add that both Mr Leung and Mr Man submitted that the de novo test was the appropriate test on an application under section 20(1)(a) of the Ordinance, rather than the supervisory test appropriate to a judicial review application.

43.Mr Man went on to suggest that deference may properly be given to the Coroner’s decision and that the Court of First Instance would be entitled to take into account the Coroner’s reasons for not holding an inquest.  For his part, Mr Leung submitted that there is no reason to give deference to the Coroner’s reasons.  He suggested that an appropriate analogy would be an appeal to the Court of First Instance under section 113 of the Magistrates Ordinance and cited Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 at §§17 to 20 to illustrate the approach in that situation.  I do not think that the analogy is strictly appropriate since an application under section 20(1)(a) of the Ordinance is not an appeal of any sort but rather an original application to the Court of First Instance.  However, I do agree with Mr Leung that it is not necessary for the court to defer to the Coroner’s reasons for not holding an inquest.  On an application under section 20(1)(a) of the Ordinance, it is simply a matter for the Court of First Instance, taking into account the evidence before it, to decide whether the case is one in which an inquest ought to be held.

Conclusion on approach not affected by section 16

44.In his submissions, Mr Man referred to the power given to the SJ by section 16 to require the Coroner to hold an inquest.  That power does not exist under the Coroners Act 1988.  It was a power formerly contained in section 8 of the Coroners Ordinance (Cap. 14).[1] In its Report on Coroners (Topic 14) published in August 1987, the Law Reform Commission of Hong Kong proposed that this power be retained.  §7.14 of the Report stated:

“We consider that the Attorney General as guardian of the public interest should retain the power conferred by section 8 of the Coroners Ordinance to direct that an inquest be held where he is aware of circumstances which justify it. This is consistent with his existing jurisdiction to bring any case before any other court for judicial determination. This does not amount to interference in the conduct of an inquest save that the Attorney General can, if he so wishes, be represented in the same way as any other interested person.”

45.Mr Leung addressed the relationship between sections 16 and 20 of the Ordinance in his supplemental written argument on behalf of the SJ.  He submitted that section 16 applies only to a situation where the Coroner has not yet made a determination as to whether to hold an inquest but the SJ considers that, due to the urgency of the matter, he should exercise the power under section 16 requiring the Coroner to hold an inquest.  If this were not the proper interpretation of section 16 of the Ordinance, he submitted, there would be no meaningful purpose in giving the SJ the right to apply to the Court of First Instance under section 20 of the Ordinance for an order that an inquest be held.

46.For his part, Mr Man submitted that there was no ambiguity in section 16 of the Ordinance, in which there was no apparent fetter on the power of the SJ to require a coroner to hold an inquest, and therefore no need to refer to any pre-enactment materials in order to construe it.  He submitted that there was no reason to construe section 16 of the Ordinance as being limited to a situation in which the Coroner has not yet made a determination as to whether to hold an inquest.  The retention of the power of the SJ (previously the Attorney General) to require an inquest is to be contrasted with the power previously vested in the Attorney General to re-open an inquest under section 20 of the Coroners Ordinance (Cap. 14).[2]

47.It is not necessary for me to resolve this question of construction of section 16 of the Ordinance on this application.  First, the present application is one made under section 20 of the Ordinance and not under section 16.  Secondly, there is no obvious correlation between sections 16 and 20 of the Ordinance.  The former contains a power exercisable only by the SJ, whereas the latter confers a right of application to the Court of First Instance not only by the SJ but also by any other properly interested person.  Further, under section 20, the applicant (whether the SJ or a properly interested person) must satisfy the Court of First Instance that the Coroner has failed to hold an inquest which ought to be held; there is no apparent restriction or requirement of this nature placed on the SJ in respect of a direction under section 16.

48.In short, therefore, the conclusion I have reached as to the approach under section 20 of the Ordinance is not affected by consideration of section 16 of the Ordinance.  Mr Man initially raised section 16 as a postscript to his written submissions.  In fairness to him, I would record that, in his oral submissions, Mr Man submitted that there was no reason to take section 16 into account in resolving the question of what was the appropriate approach in an application under section 20 of the Ordinance.  In effect, he invited me to disregard his postscript reference to section 16.

Is this a case in which an inquest ought to be held?

49.Mr Leung submitted that this was a case in which the court could properly conclude that an inquest ought to be held because there were aspects of this case which engaged the wider public interest and which called for an inquest to be held. Specifically, Mr Leung submitted that the Coroner was wrong in prematurely concluding that no meaningful recommendation could come from the jury in the present case if an enquiry were held.  This was because, on Dr Yim’s evidence, the serious mistake in surgical judgment in the present case called into question whether the initial surgeons carrying out the operation were properly trained or supervised.

50.In order to determine whether an inquest ought to be held in the present case, it is necessary to identify the proper purpose of an inquest. The provisions of section 27 of the Ordinance specify the purpose of an inquest and it is now well-established that its purpose is to ascertain “how … the person came by his death”.  This is a limited factual question directed at the means by which the deceased came by his death and not in what broad circumstances the deceased died: see Tien v Lam, Esq. [2004] 2 HKLRD 719 at §13 per Hartmann J (as he then was).[3]

51.As sections 44(1) and 44(3) of the Ordinance clearly demonstrate, it is not the function of an inquest to determine civil liability.  As Mortimer JA (as he then was) held in China Light & Power & Anor v Warner B.G. Banks, Esq. [1995] 1 HKLR 67 at 73:

“Yet it is widely and quite wrongly believed that the main purpose of a coroner’s inquest, in a case like this, is to lay the foundation for a civil claim for damages against any person who in the opinion of the coroner’s jury (as exhibited by its verdict) was to blame for the deceased’s death. This belief persists, notwithstanding repeated efforts, by the court and by the legislature, to make it plain that, so far from this being the task of the coroner’s jury, it is a task on which it has to be expressly directed not to embark. The question of blame is one exclusively for the ordinary courts, not for the coroner’s court, and the findings of the coroner’s court are not relevant to any issue which the ordinary courts may have to determine.”

52.Thus, sections 27, 44(1) and 44(3) of the Ordinance define the limits of the scope of the enquiry at an inquest into the death of a person.  Specific matters are to be ascertained, namely those matters specified in paragraphs (a) to (d) of section 27.  But, in the present case, those matters are already known:

(1)     As to section 27(a), there is no issue as to the identity of the Deceased in the present case. 

(2)     As to section 27(b), how the Deceased died is described in the Medical Report of Dr Wong, to which I have referred in paragraph 10 above.  There is no suggestion that the report is factually inaccurate in any way and so it must follow that the Coroner was correct in stating, in his letter dated 22 September 2008, that: “the cause of and the circumstances connected with the death are clearly known, and it is evident that the death was a result of a misadventure (or simply an accident if one were to follow those English authorities which suggest the suppression of ‘misadventure’ in favour of ‘accident’ …”.

(3)     As to paragraph 27(c), there is no suggestion that the particulars required by the Births and Deaths Registration Ordinance (Cap. 174)[4] are not known in the present case.

(4)     As to section 27(d), the conclusion of the jury or coroner as to the death are relatively well-defined as demonstrated by the notes to Form 12 of the Coroners (Forms) Rules (Cap. 504C).  Particular forms of conclusion are suggested in those notes.  In a case such as the present, the relevant note is 4(b) which suggests the following forms be adopted:

“The deceased killed himself [whilst the balance of his mind was disturbed].

The deceased died as a result of an attempted/self-induced abortion.

The deceased died as a result of an accident/misadventure.

The deceased was killed lawfully.

Open verdict, namely, the evidence did not fully or further disclose the means whereby the cause of death arose.”

Here, in the light of the Medical Report to which I have referred, there is little doubt that the conclusion in the present case is that the Deceased died as a result of an accident or misadventure, the latter being understood to indicate some deliberate (but lawful) human act which has unexpectedly taken a turn that leads to death: see Jervis on the Office and Duties of Coroners (12^th Ed.) at §13-26.

53.Notwithstanding the above, Mr Leung suggested there were various matters in the present case which supported the public interest in holding an inquest.  The crux of his submission was set out in paragraph 18 of his supplemental written argument which reads:

“It is not suggested that an inquest is required to be held in every case where a person died during an operation but where the expert opinion strongly suggests a serious mistake had been made and a query as to whether the surgeons were properly trained and supervised, how medical practitioners decide on the mode of carrying out a medical operation which was necessary, the training and supervision of the medical practitioners in carrying out the operation and more importantly, the existence and adequacy of a system to minimize mistakes should be examined in an inquest to ensure avoidance of similar unfortunate incidents from recurring in future by the identification of deficiencies in the system and improvements thereto recommended. This is consistent with the spirit of s. 44(2)(c) of the Ordinance.”

54.In support of this submission, Mr Leung relied on two authorities. The first is R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461 and the second is Re the Medical Defence Union & Anor [1991] HKLR 429.

55.Takoushis was a case involving the death of a long-term schizophrenic who died in circumstances in which the triage system of an NHS hospital failed.  The system required a person constituting a suicide risk to be seen within 10 minutes.  Although the deceased was identified as being such a risk, he was not seen within 10 minutes and he was left unattended for more than half an hour.  As a result, the deceased absconded from the hospital and committed suicide.  An inquest was held by the Coroner and an application was made to him to adjourn the inquest with a view to summoning a jury on the ground that the death had occurred in circumstances the “continuance or possible recurrence of which is prejudicial to the health or safety of the public” within the meaning of section 8(3)(d) of the Coroners Act 1988.  The Coroner found that there was no systemic failure on the part of the hospital and its subsequent changes to the triage system made a recurrence of its breakdown less likely and therefore refused the application.  The deceased’s widow applied for judicial review of the Coroner’s decision not to summon a jury but this was dismissed at first instance.  On appeal, the Court of Appeal held that although the Coroner had correctly identified the system as the emergency triage system, he had failed to investigate it in sufficient detail or to consider what safeguards were in place, concluding instead that what had occurred after the initial triage decision had been made was a breakdown of the system rather than any defect in the system itself.  Accordingly, the Court of Appeal concluded that the basis on which the Coroner reached the impugned decision was flawed and a fresh inquest was ordered.

56.In my opinion, the facts of Takoushis are distinguishable from the present case.  The present case concerns an apparent error of professional surgical judgment.  On the basis of Dr Yim’s expert report, serious questions are raised as to the appropriateness of the thoracoscopic surgical approach.  That is a decision which prima facie relates to the particular surgery undertaken in respect of the Deceased.  The nature of the apparent error is therefore a surgical judgment in respect of one particular case.  It is different in kind from the failure of a triage system, the subject matter of the relevant enquiry in Takoushis, which involved questions as to how quickly patients were or ought to have been seen.  Those questions are not primarily matters of medical judgment but are instead related to the manner in which the services of a hospital are deployed.

57.Re the Medical Defence Union & Anor is an unusual case involving an inquest into the death of a woman who died due to the administration of the wrong gas during an operation.  The applicants, the Medical Defence Union and a doctor, did not seek to challenge the verdict of the jury which was “Death due to wrong supply of gas to hospital”.  However, they sought a declaration, by way of judicial review, that the Coroner had erred in law and exceeded his jurisdiction in having ruled that the issue of whether or not the doctor in question exercised reasonable skill and care was a proper issue, in calling witnesses with a view to determining the above issue and in allowing the Coroner’s officer and counsel on behalf of other interested parties to examine witnesses with this object.

58.Insofar as this case may be understood to support a proposition that evidence as to whether negligent or inadequate medical treatment was administered to the deceased may be admissible as going to the question of how the deceased came by his death, I do not think it is particularly controversial.  All three members of the Court of Appeal cited with the approval the New Zealand case of Louw v McLean CP445/1987 in which Hardie Boys J held:

“Nonetheless, for an inquest to have a useful social function it must I think be able to go beyond the mere medical cause of death. I agree with the comment in Halsbury’s Laws of England 4^th edn vol 9 para 1110, note 1, that the coroner must also investigate ‘the circumstances surrounding the death’. This must necessarily involve in this case not only a determination of the procedures that were employed, but also a determination as to whether the correct procedures were employed. If the evidence does not enable the Coroner to determine that then he must not do so. But if it does, then I consider that it is part of his function to do so. This is not necessarily the same thing as allocating blame. That is not the Coroner’s function. … But if in order to ascertain or explain how death occurred, in the wider sense of the events that were the real cause, the implicit attribution of blame is unavoidable, then, as the Coroner himself observed, ‘so be it’. …

It follows that if, to use the terminology of the prayer for relief in the statement of claim, evidence is adduced the substantial purpose of which is to discredit the applicant, in the sense of showing that he was at fault, the Coroner will stop it, for the purpose of the inquest is not to discredit or to blame Dr Louw, but to ascertain how Mrs Hendrie died.  If however evidence directed to that topic tends to discredit or place blame on the doctor, that cannot be helped. …”

59.On the other hand, I do not accept that Re the Medical Defence Union & Anor stands as authority for the proposition that the fact that the medical procedures employed may be a proper subject of enquiry provides a reason for concluding that an inquest into the death of a person ought to be held, where it is already known how the death occurred.  In short, I do not consider that the observations of the Court of Appeal in Re the Medical Defence Union & Anor as to the admissibility of evidence which might implicitly attribute blame compels me to reach the conclusion that an inquest ought to be held in the present case.

60.I am prepared to accept that the possibility that a coroner or jury might make recommendations under section 44(2) of the Ordinance may, on the facts of a particular case, provide a reason for concluding, under section 20(1)(a) of the Ordinance, that an inquest ought to be held. 

61.Nevertheless, in my opinion, it is still necessary to decide whether the evidence is such that the court can be satisfied that the circumstances of a particular case are such as to lead to the conclusion that an inquest ought to be held.  This is because section 20(1)(a) of the Ordinance is only engaged with the court is “satisfied” that a coroner has failed to hold an inquest which ought to be held: and it must follow that the applicant bears the burden of satisfying the court in this regard.  So, where it is said that an inquest ought to be held because the jury or coroner might make useful recommendations, I consider that it is incumbent on the applicant to identify at least broadly the areas in which useful recommendations might be made and to point to some evidential basis for suggesting that a coroner or jury would be likely to make such recommendations.  This is particularly so because there is inevitably an element of speculation in contending that an inquest ought to be held because of possible recommendations that might be made by a coroner or jury at the conclusion of an inquest.

62.At this point I return to the facts of the present case.  The case concerns the conduct of an operation in a specific case and the appropriateness of the particular surgical method adopted in the circumstances of the case.  As a preliminary observation, it is difficult to see how a lay jury or non-medically-trained coroner might be able to make generally useful recommendations on the surgical procedure adopted.

63.As to the particular types of recommendation identified in section 44(2) of the Ordinance, the application is not supported by specific evidence demonstrating that the surgical mistake in the present case is one which has been repeatedly made in the past or is still being made on a recurrent basis.  Nor is there evidence of any particular deficiency in a system or method of work that should be examined at an inquest.  Although Dr Yim added at the end of his report that the case raises the question of whether the initial surgeons carrying out the operation were properly trained or supervised, his opinion in this regard appears, in the context of his report, to be based simply on his view of the seriousness of the mistake of surgical judgment.  He has not referred to any evidence regarding the actual training or supervision of the doctors who undertook the surgery in question or pointed to any particular failure in their system of training or supervision that might usefully be explored.  Accordingly, I do not consider that there is a sufficient foundation for a suggestion that there were any systemic deficiencies in relation to the training or supervision of the surgeons in question, or their decision to adopt the thoracoscopic surgical method for this operation, in respect of which a coroner or jury could make generally useful recommendations.

64.Finally, I return to consider the case of Secretary of Justice v Andrew Chan, Esq., a Coroner.  Hartmann J concluded in that case that the Coroner ought to have held an inquest into the death in question.  There the Coroner was of the opinion that any inquest would inevitably result in an open verdict.  It is also important to note that Hartmann J considered the circumstances were such as might “give rise to genuine grounds of suspicion” and that there were “matters of concern” which were open or might be open to different interpretations and conclusions (see §§8 and 9).  In his view, an inquest would allow the Coroner and the jury to review the circumstances of the death and insofar as it was necessary, to seek to erase at least some of the doubts which surrounded the matter (see §10).  In my opinion, the circumstances of Secretary of Justice v Andrew Chan, Esq., a Coroner were very different from the case before me and I do not regard the particular outcome of that case as lending any support to the present application.

65.The death of a young child in the course of medical treatment which his family would naturally hope would lead to his being returned to good health is a tragedy and the court’s sympathy is with the family of this young boy.  In the present case, if the surgical errors apparently made in the present case merit disciplinary proceedings, that matter can and should be taken up with the appropriate regulatory authorities.  Similarly, if a common law duty of care was breached, proceedings for civil liability may be pursuable.  However, for the reasons I have set out above, I am not satisfied that this is a case in which an inquest ought to be held by the Coroner and I therefore decline to exercise my discretion under section 20(1)(a) of the Ordinance to order an inquest to be held into the death of the Deceased. 

Conclusion

66.In the circumstances, the application in the Originating Summons must be dismissed.

67.No submissions were made as to the appropriate disposition of costs in this case.  Given that the Coroner as respondent took a neutral stance in this application and did not appear at the hearing, I do not consider that there is any good reason to make an award of costs in his favour.  I therefore make an order nisi that there be no order as to costs.

68.Finally, I thank both counsel for their assistance in this matter.

Mr David Leung, SADPP of the Department of Justice, for the Applicant

The Respondent, represented by Messrs Wilkinson & Grist, absent

Mr Bernard Man, Amicus Curiae