Bills Committee on the Coroners Bill

Discussions among members

The Chairman referred to the twelve questions raised at the last meeting and highlighted the more controversial issues including decisions to hold an inquest without a jury, provision of legal aid for inquests, and the manpower requirement of the coroners office.

Meeting with the Administration

Question 1

(Appendix I of LegCo Paper No. CB(2) 1769/95-96)

2. At the request of the Chairman, Mr Stephen FISHER advised members that a new paragraph was introduced to restrain the coroner’s discretion by requiring a coroner to consider two factors before deciding to hold an inquest without a jury, namely (1) whether representations were made by interested parties and, (2) whether it would be just, expeditious and economical to do so, and that should the coroner fail to comply with the above, the High Court might initiate an inquest on those grounds upon an appeal. Regarding the second factor above, Miss Margaret NG pointed out that there was a discrepancy between members’ request (just, expeditious, and effective) and the Administration’s response (just, expeditious and economical), and enquired how a coroner might strike a balance among those three criteria. In reply, Mr Geoffrey FOX referred members to page 20 of the Coroners Bill for the origin of those three criteria and stressed that the overriding concern was whether it was just while it would be a matter of policy to consider expeditiousness and economy. Upon discussion with his colleagues, Mr FISHER agreed to replace "economical" by "effective".

3. The Chairman raised members’ concerns about the three criteria, which were summarized as follows:

1. How the public could be ensured that the three criteria would be fair to them;
2. Since a pre-inquest review and an actual inquest were different, different criteria should apply; and
3. The implications of the new paragraph (b) of subsection (2A) and whether it was the responsibility of the coroner to advise interested parties.

In response, Mr FOX pointed out that it was not the responsibility of the coroner to solicit views of interested parties, and that interested parties should make representations on the matter. Mr Albert HO Chun-yan argued that as justice was considered the overriding factor among the three, it should be stated explicitly in the Bill. In reply, Mr FOX opined that it would not be necessary to do so, but should the Bill Committee decide otherwise, the Bill could be rewritten to reflect it. Regarding Mr HO’s queries on the application procedures in the High Court to repeal a coroner’s decision, Mr FOX referred members to section 19 of the Bill about the procedures. The Chairman asked how a member of the public knew whether an inquest with a jury was preferable as an ordinary person might not be aware of the right to make representations for an inquest and the right to appeal, particularly in the absence of legal aid. Mr FOX said that everybody had the legal right to appeal but might need legal advice to explore different options.

4. Miss NG opined the Administration’s present recommendations were just a token improvement and wondered whether the CSA could fully address members’ concerns. She requested the Administration to provide better protection to the public, such as requiring a coroner to have a jury for an inquest or to accede to any request for a jury. The Chairman supported her stance by stating that interested parties might not possess legal knowledge nor have legal representations and coupled with the stress caused by death of a family member, they might be confused about the correct and just way to act. Mr Paul TANG stated that the role of a coroner was not to invite interested parties to make representations and assured members that a coroner would consider representations made by interested parties. He added that the solution should be to arrange for more publicity on the rights of properly interested persons after the Bill was enacted. He stressed that a jury might not facilitate an inquest in certain situations. He pointed out that:

1. It was not advisable to recommend a jury for each and every inquest;
2. There were guiding principles in the CSA to a coroner in this respect;
3. There was an appeal channel regarding a coroner’s decision to hold an inquest without a
4. It would be reasonable to ask a coroner to handle the job expeditiously and effectively while it was obvious that justice was the overriding factor.

5. Regarding the three criteria, namely, just, expeditious and economical, Miss NG was concerned that a coroner might interpret that he had to satisfy all those three criteria when a decision was made, and opined it would be confusing to include expeditious and economical in the criteria. She was convinced that in most cases, an inquest without a jury would be more expeditious and economical and the emphasis should be on justice. In response, Mr FOX agreed with her observations and said that in his personal view, "expeditious and economical" could be deleted. Mr FOX undertook to consult the coroner and relevant parties and to advise the Bills Committee on the deletion and the wording of the new paragraph.

Adm

5. The Chairman pointed out that the matter had also to be viewed from the public’s angle. Very often, they were aggrieved by what was written down as the cause of death. Mr HO suggested to require a coroner to accede to the request of the family of the deceased to hold an inquest with a jury unless there was strong reasons of justice to support his decision otherwise. He then asked whether a coroner and the jury were allowed to make recommendations on proposals which were not legally binding. Mr FOX said that it was not advisable to do so because confusion might arise in the event that contradictory recommendations were given. Miss NG pointed out and Mr FOX agreed that there was provision in clause 43(2) of the Bill to allow a coroner and the jury to made recommendations.

6. Miss NG asked at what stage interested parties would make representations to the coroner. In reply, Miss Sarah WU stated that a death report would be prepared in 6 months on the average after a call for such a report, a decision to hold an inquest would be made within 3 days upon receipt of the report and an inquest would be held if so decided in approximately 42 days. Regarding the representations made by interested parties, Miss NG remarked that though there was a clause in the CSAs to provide a right to make representation, operationally, there was not an opportunity for interested parties to exercise their rights. Noting that a coroner had to decide whether a pre-inquest review would be held, the Chairman asked how ordinary people made representations to ask for a pre-inquest review. In response, Mr FOX envisaged that publicity pamphlets would be published to detail the process and the right of the public, particularly in making representations for an inquest with or without a jury, and that representations might be made orally or in writing. Miss NG argued that a right to make representations without an opportunity to exercise it would invite a lot of criticisms from the public.

7. In conclusion, the Chairman summarized the Committee’s proposals to delete "expeditious and economical" from the new subclause (2A) of clause 13 of the CSA and to amend the Bill to provide an opportunity for interested parties to exercise their right to make representations regarding a decision to hold an inquest without a jury. The Administration agreed to consider the proposals and inform the Bills Committee of its decisions.

Adm

Questions 2 and 3

(LegCo Paper No. CB(2) 1797/95-96 and Appendix I of LegCo Paper No. CB(2) 1845/95-96)

8. In response to Miss Margaret NG’s enquiry on what occasions legal aid was extended to coroner’s court, Mr Stephen FISHER stated that legal aid would be granted to civil proceedings, claims and the like, where part of the proceedings involved coroner’s court and the Director of Legal Aid allowed legal representations for such inquest. Mr Albert HO Chun-yan informed members that there were cases in his office where legal aid was not granted pending decisions of inquests. Miss NG noted with regret that the Director of Legal Aid was not present for the discussion and the Chairman indicated that the Director of Legal Aid should be invited to the next meeting of the Bills Committee to clarify the issues. Miss NG further queried whether there was a policy of not granting legal aid to civil proceedings until an inquest was completed and it might be an appropriate opportunity to pursue the question and to amend the Legal Aid Ordinance as a consequential amendment. Mr Paul TANG clarified that in terms of policy, legal aid would not be extended to coroner’s court, but the Director of Legal Aid had the discretion to grant legal aid to civil proceedings arising from the death which was not necessary conditional upon whether an inquest was being conducted. Members agreed to defer further discussions on Question 2 to the next meeting.

Adm

Question 4

(LegCo Paper No. CB(2) 1743/95-96)

9. Mr HO Chun-yan suggested that definitions for those findings on the standardized list should be given and quoted a case related to an incident at Castle Peak Power Station where the Court of Appeal overruled a verdict from coroner’s court (lack of care) that negligence was not applicable in the case. In reply, Mr Geoffrey FOX said that guidance on the standardized list was conveyed to the coroner who would explain them to a jury in the context of the case. However, Mr HO argued that the coroner might have his own interpretations of those definitions. Miss Sarah WU agreed to look up the case mentioned by Mr HO , and Mr FOX agreed to seek the coroner’s views on the proposal. Miss Margaret NG requested a better version of the Chinese translation of the findings as the present one did not bring out the meaning clearly.

Adm

Adm

Question 5

(LegCo Paper No. CB(2) 1819/95-96)

10. Mr Stephen FISHER said that the Administration was prepared to move an amendment at the Committee Stage to provide that a properly interested person might obtain a copy of any witness statement or medical report relating to the death of a person from the coroner’s office for a fee after submitting a request prior to the inquest. Supporting this amendment, Mr HO said that since it was fair and just to all parties, the amendment should be put in place immediately before it became law. The Administration agreed to consult the coroner on the issue.

Adm

Question 6

(Appendix I of LegCo Paper No. CB(2) 1749/95-96)

11. Mr Paul TANG highlighted those circumstances which required a police officer to report the death direct to a coroner, and that when a coroner initiated an investigation, he might seek police assistance, or invite an independent agent or investigate by himself. Miss Margaret NG enquired how often a coroner initiated an investigation and who those people were to assist a coroner in an investigation. The Administration replied that someone from the Attorney General’s Chambers, such as Crown Counsel or officers from the Government Laboratory might be made available but most of the time, police officers would be involved. Regarding the assistance of police officers in investigations, Miss NG pointed out that a potential conflict of interests might arise in investigations particularly those related to the Police Force, due to the fact that the Commissioner of Police (CP) was charged with supreme direction and administration of the Police Force. In response, Mr FOX said that it was a general statement and CP could not instruct police officers not to perform the duties. Regarding Miss NG’s concern that CP might interfere with investigations because of section 4 of the Police Force Ordinance, Mr FISHER stated that a coroner might seek assistance outside the Police Force, such as from the Judiciary, or even the Independent Commission Against Corruption. As an alternative, Miss NG suggested that police officers might be seconded to the coroner’s office or the coroner’s office could have its own investigating officers. In reply, Mr TANG explained that majority of the cases were not related to the Police Force and therefore police officers’ involvement should be acceptable. For the remaining sensitive but small number of cases, a coroner might secure assistance outside the Police Force and external agents would be involved in the process. He stressed that there was no justification for changing the present arrangement only for the small number of cases.

12. Concerning provisions in the Bill to spell out the power of a coroner, the resources for securing external agents, and the channel through which a coroner might obtain those power and resources, Mr FOX quoted Rule 8 of Coroners Rule in this respect. However, the Chairman observed that the above rule did not clearly address members’ concerns, and asked the Administration to include clauses in the Bill to enshrine members’ requests. Miss NG added that members were not asking to equip the coroner’s office with its own teams of investigators, but requested clear indications on alternatives of investigations available to a coroner for cases with apparent or even potential conflicts of interests with the Police. Furthermore, she requested the Administration to provide legislative safeguards at different stages of the entire process of investigations, particularly in respect of sensitive cases, so that objectivity could be maintained. The Administration agreed to review members’ suggestions.

Adm

Adm

Question 7

(Appendix II of LegCo Paper No. CB(2) 1769/95-96)

13. Regarding the work of a coroner, Miss NG opined that a coroner might face high-profile inquests, and inquests involving serious matters with complicated expert evidence, and strongly represented parties. Mr FOX added that when an inquest was held with a jury, a coroner had to guide them carefully. Miss WU stated she would not recommend a higher rank for the post of a coroner at the present time but would monitor the situation.

Question 8

(Appendix II of LegCo Paper No. CB(2) 1749/95-96)

14. Based on the expected increase of the numbers of cases in the coroner’s office, the Chairman wondered if the Administration’s proposal of not recommending additional manpower would be appropriate. In reply, Mr FISHER said the projections of the number of cases would not be as large as presented and agreed to provide members with a revised estimate of cases.

Adm

Question 9

(Appendix III of LegCo Paper No. CB(2) 1749/95-96)

15. Mr Stephen FISHER explained members that clause 44 (costs) was introduced in the Bills based on the recommendation of the Law Reform Commission. Miss Margaret NG strongly objected to it because the ambit was very wide and unfair and the scope of the conduct was not clearly described. She considered that the provision was not justified, and asked the Administration to clarify who might be caught under the clause and what kinds of conduct would be caught under the provision. Mr HO suggested the clause be deleted. The Administration agreed to re-consider the clause.

Adm

Question 10

(Appendix III of LegCo Paper No. CB(2) 1769/95-96)

16. Members noted the Administration’s affirmative answer to this question.

Question 11

(Appendix IV of LegCo Paper No. CB(2) 1749/95-96)

17. Mr FISHER explained that based on the recommendation of the Law Reform Commission Report, clause 48 aimed at providing a statutory protection to a coroner in the exercise of the duties similar to those of a magistrate.

Question 12

(Appendix V of LegCo Paper No. CB(2) 1749/95-96)

18. For item 2 under Part 2 of Schedule 1 of the Bill, the Chairman queried why the Administration recommended a person in charge of a hospital should report to both the coroner and CP while individual medical practitioners should only be required to report to CP. In reply, Mr FISHER said that it would incur extra workload on individual medical practitioners to follow the same channel as recommended for a person in charge of a hospital. In support of the Chairman’s question, Mr HO considered that report should be made to the coroner only who would then decide whether CP should be involved. Mr FISHER pointed out that the coroner’s office would not have the required resources to handle the matter quickly. The Administration would have no objection to individual medical practitioners and a person in charge of a hospital using the same reporting procedure. Expecting that a consultation with medical professionals would be needed on the issue, the Chairman recommended to postpone discussions of the proposed procedures.

Next Meeting

19. The next meeting was scheduled for 24 July 1996, Wednesday, at 8:30 a.m. in Conference Room B of the LegCo Building.

20. The meeting ended at 10:45 a.m.

LegCo Secretariat
9 August 1996