LegCo Paper No. CB(2) 439/96-97
[These minutes have been seen
by the Administration]
Bills Committee on the Coroners Bill
Seventh Meeting on Wednesday, 11 September 1996 at 10:45 a.m. in Conference Room B of the Legislative Council Building
Members present :
Dr Hon LEONG Che-hung, OBE, JP (Chairman)Member absent :
Hon Ronald ARCULLI, OBE, JP
Hon Michael HO Mun-ka
Hon Albert HO Chun-yan
Hon Margaret NG
Hon James TO Kun-sun*Public officers attending :
Clerk in attendance :
- Mr Paul TANG
- Deputy Director of Administration
- Mr Stephen FISHER
- Assistant Director of Administration
- Miss Sarah WU
- Deputy Judiciary Administrator
- Mr Geoffrey FOX
- Senior Assistant Law Draftsman
Staff in attendance :
- Ms Doris CHAN
- Chief Assistant Secretary (2)4
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Mr Alfred CHAU
- Senior Assistant Secretary (2)4
I. Members Discussion
1. Miss Margaret NG referred to paragraph 4 of the minutes of the meeting held on 16 July 1996 and said that she did not request the Administration to require a coroner to have a jury for an inquest. Her request was rather to the effect that there should be better protection for the public as to the question whether a jury would be required for an inquest. She noted that later on the point was cleared up and that the Administration had correctly reflected her views in the Committee Stage Amendments (CSA).
2. Referring to replies dated 10 July and 1 August from the Administration, Miss NG pointed out there were contradictory statements on legal aid for inquests in the United Kingdom (UK). She would ask the Administration to obtain full details on the legal aid scheme in UK and in British Columbia (BC), Canada. On receipt of the additional information to be provided, including the original provisions, a comparison might be made with our Ordinance.
3. Responding to the Chairmans question on whether legal aid for inquests should be examined in the context of this Bill or in the context of the Legal Aid Ordinance, Miss NG said that subject to further materials from UK and Canada, she would prefer it as a consequential amendment to this Bill because it was directly to do with coroners and might have an impact on the procedures of the coroners court. Mr Michael HO supported Miss NG's proposal as it would be quicker than through the other alternative. Miss NG also pointed out that it was better to deal with the matter now so that when the Bill was passed, the public could be informed clearly whether legal aid would be available. Other members agreed.
4. The Chairman concluded that it was members consensus that legal aid should be made available for inquests and the relevant amendments should be made in the context of this Bill.
5. Mr Albert HO said that he was dissatisfied with the replies given by the Legal Aid Departments representative at the last meeting concerning the availability of legal aid for inquests and tabled a letter from the Legal Aid Department which clearly showed that legal aid was not available for inquests.
6. As regards the definitions of findings relating to causes of deaths, Mr Albert HO quoted another case with the finding of "lack of care" which resulted in a judicial review which also ruled that the finding was not appropriate. He supported the proposal for a leaflet explaining some of the more common coroners findings to be published to enable relatives of the deceased to better understand them.
7. Regarding investigations of reportable deaths involving the Police, Miss NG referred to the letter dated 8 August 1996 from the Administration and said that the Administration did not answer any of the points members raised, and the responses were not useful. Mr Albert HO agreed with Miss NG that all that members asked for was for the coroner to be given the power and resources to have independent investigators if he considered that there was such a need.
8. Mr Ronald ARCULLI asked how coroners decided which cases were Police cases. Miss NG said that as a rule for deaths occurred under Police custody, the coroner should consider having independent manpower for investigations. He could have staff seconded to him for the purpose or he could have his own staff. If it was agreed that there was a need in the public interest to provide coroners with the power and resources to conduct independent investigations, the Bills Committee had to study further on the ways and means of obtaining independent investigators.
9. The Chairman reminded members that police officers seconded to the Coroners and Office were still answerable to the Commissioner of Police (CP). Therefore investigations of police cases by such officers could not be regarded as independent investigations.
10. Supporting the Chairman, Mr Michael HO added that those police officers knew that they would return to the Police Force and face their colleagues at the end of the secondment. He therefore doubted the independent nature of such investigations and did not consider that secondment of police officers as investigators would solve the problem.
11. On reporting reportable deaths, the Chairman informed members that his constituents agreed with the amendment to provide that any registered medical practitioner should report to the Coroner with a copy to CP at the same time.
II. Meeting with the Administration
12.The minutes of meetings held on 16 and 24 July 1996 were confirmed.
Legal aid for inquests
13. Miss Margaret NG requested the Administration to provide full details of legal aid schemes for inquests in UK and in Canada as follows together the original provisions in law:
- what the scheme for providing assistance was;
- what the provisions in law were;
- under what circumstances and at what stage assistance would be made available; and
- what kind of advice/assistance would be given.
14. Mr Stephen FISHER explained that the initial responses from UK and Canada indicated that legal aid was not available for inquests. Subsequent exchanges with UK and BC, Canada revealed there were exceptions to the general rule but no details had been provided. Mr Ronald ARCULLI referred to the scheme in BC and pointed out that the person concerned was really a potential wrongdoer but members were more interested in what was available for the victims family. Mr FISHER agreed to seek more information from BC and UK as requested by members.
|15. Mr Albert HO said that although the Legal Aid Department said that assistance could be given under section 9 of the Legal Aid Ordinance, his experience was that legal assistance was never provided for inquests, and supported his argument by referring to a typical letter from the Legal Aid Department rejecting a recent application for legal assistance for attendance at an inquiry of two weeks duration (tabled). He urged the Administration to clarify the situation and to confirm that section 9 would not be used at all as indicated clearly in the letter.||Adm|
16. Mr Stephen FISHER said that basically what Mr HO said was true as based on the information provided by the Legal Aid Department, only two cases were provided legal representation at a coroners inquest in the last few years. He agreed to clarify with the Department and to advise members.
|17. The Chairman said that members shared the view that legal aid should be provided for coroners inquests and members would like to see the original provisions of legal aid schemes in UK and BC before deciding whether to deal with the matter in the context of this Bill.||Adm|
18. Mr Paul TANG reiterated that legal representation would be provided to a client at a coroners inquest if the client was granted a legal aid certificate or when the application for a legal aid certificate was in process, the Legal Aid Department might consider provision of legal assistance with respect to a coroners inquest to assist in determining whether legal aid should be granted to the applicant. He understood that in UK and BC legal aid for inquests in general was not available, but legal opinions and knowledge would be provided under special circumstances. To provide legal assistance for inquests required not only resources but also setting down the circumstances under which legal assistance could be provided. He commented that it could be done administratively instead of through legislation.
19. Miss NG recommended that discussions on legal aid for inquests be postponed until the information to be obtained from UK and BC was available.
20. In order to save time on correspondence, the Chairman supported Mr ARCULLIs suggestion that members should forward any further requests for information to the Secretariat for onward transmission to the Administration within the next few days.
Definitions of the standardized list of findings
21. Mr Albert HO referred to two cases at coroners courts resulting in judicial reviews which revoked the coroners findings, and argued that if coroners could make mistakes on the findings, family members of the victims were bound to be confused. He welcomed the Administrations plan to issue a leaflet to explain the more common findings and requested that detailed information should be provided to include the nature of the findings, their meanings and implications, and to stress that their rights to civil proceedings would not be affected. He said that he would not insist on including definitions of the findings in the Bill if a satisfactory leaflet could be published as soon as possible.
22. Miss Sarah WU pointed out that the Administration would aim to coincide the availability of the leaflet with the passage of the Bill. She would consult the coroners regarding the contents which would be aimed at meeting the needs of the public.
Investigations of deaths reported by the Police
23. Miss Margaret NG pointed out that there was no new point in the letter dated 8 August 1996 from the Administration and she did not agree with the Administrations conclusion that there was no real need to make special provision in the Bill. She opined that there was a real need which deserved members attention. The public would have no confidence in the investigations by the Police when a clear conflict of interest existed.
24. Mr Michael HO agreed that a conflict of interest existed. He pointed out that in order to file a complaint with CAPO, one needed to produce evidence and it would not be easy for members of the public to obtain appropriate evidence to support a complaint. Therefore the role of CAPO as a safeguard would not be effective.
25. Mr Albert HO pointed out that the issue related to the question of confidence in the Police Force and requested the Administration to initiate changes in this respect. He stressed that Mr Michael HO and he would not give way on this matter.
26. Mr ARCULLI pointed out that the broad statement of "conflict of interest" could be extended to other government departments and that the practicality of the proposal to establish a team of independent investigators should be considered, such as to whom the team should report. He asked the Administration to consider related discussions on the issue in previous meetings. He understood that members were not happy with the Administrations comments that the Police Force was doing a good job, and that there were internal measures in the Police Force to monitor their investigations. He would recommend that the perception, the reality and the practicality of the issue should be considered.
27. The Chairman reminded the Administration that members were of the view that not all cases involving the police would be investigated by the independent investigation team but that the coroner should have the power to appoint, if necessary, persons from outside the Police Force to help him and report to him.
28. Mr ARCULLI said that some cases of deaths while in Police custody would not require investigation by an independent team and quoted an example to illustrate his point.
29. Miss NG said that there was no intention to cast any doubt on the integrity of the Police and agreed with Mr ARCULLI that not all cases of deaths in Police custody should be investigated by the independent team. She explained that the coroner should have the power and resources to ask for independent investigations as he thought fit.
30. Mr Paul TANG reiterated that the results of CAPO investigations were subject to scrutiny of the Independent Police Complaints Council (IPCC), and that in the event of special cases, the Governor in Council might appoint a Commission of Inquiry to carry out investigations. He reminded members that the objective of the coroners court was to find out the cause of death and not to conduct criminal investigations which would be undertaken by the Police anyway. Also, police officers were required by law to assist coroners in their work.
31. Miss NG requested the Administration to state, point by point, the safeguards available.
32. Mr Paul TANG said that when a coroner received a report of death in Police custody at Police Station A, the coroner would ask the Commissioner of Police to provide investigators. A separate Police team, not from Police Station A would be sent to assist the coroner in the investigation and to provide other support services as required. The coroner might seek additional assistance such as calling on the Government Chemist to provide expert opinion.
33. Mr ARCULLI asked whether a Standing Order existed to instruct relevant police officers concerning investigations of this type. Mr Paul TANG agreed to advise the Committee in this respect.
|34.Mr ARCULLI understood that investigations in general might aim at finding the causes of deaths or at other objectives, such criminal offences, and asked whether the separate Police team would conduct a comprehensive investigation or whether there were different Police teams with different objectives on the same case. Miss Margaret NG added that the objectives of the discussion were to understand the safeguards clearly and to scrutinize each of them and possibly to recommend further improvements.||Adm|
35. At the request of the Chairman, Mr Stephen FISHER agreed to invite representatives of the Police and the Security Branch to the next meeting. He added that the Police would investigate any suspected crimes including reported deaths in Police custody which would be done separately from the team which was assigned to the coroner in the investigation of causes of deaths. In the event that police officers were suspected of committing a crime, the Police would initiate an investigation in this respect. Should a reported death in Police custody be a suspected crime committed by police officers, the Police would investigate accordingly. He also pointed out that there were safeguards in the investigation process and no problem had occurred so far.
36. Miss NG did not agree with Mr FISHER that there was no problem and asked for documentation concerning those safeguards so that scrutiny and recommendations might be made. The Administration agreed to further elaborate in writing.
Part 2 of Schedule 1 of the Bill
|37. The Chairman said his constituents agreed that any registered medical practitioner should report to coroner with a copy to CP at the same time.||Adm|
Committee Stage Amendments (CSAs)
|38. Miss Margaret NG referred to the new clause 12A of CSAs under the LegCo Paper No. CB(2) 2060/95-96, and Mr FOX explained that there were two conditions to be met before the coroner should comply with the request for supply of witness statements, etc.||Adm|
39. To the question raised by Mr ARCULLI on the same item as to why it had to be before the inquest, Mr FOX answered that there were already provisions in law to obtain witness statements and other relevant documents during and after the inquest.
40. The Chairman referred to clause 3(2) and asked whether an amendment to the qualification of a coroner would be considered in readiness for the hand-over in 1997. Mr FISHER replied that a draft Bill on judicial qualifications was under preparation which would be applicable to judiciary officers across the board and was expected to be discussed in the next LegCo session.
41. On clause 6(2), the Chairman asked whether a definition of a pathologist was available. Mr FOX replied that there was no definition yet. The Chairman urged the Administration to look into the definition and suggested that it could be along the line dealing with the definition of a psychiatrist in the Mental Health (Amendment) Ordinance 1996.
|42. On clause 10(1), the Chairman quoted that "a coroner, may, if satisfied by information......." and inquired from whom the information was obtained. Mr FOX said it was usually a police officer, but it could be any person.||Adm|
43. In response to the comment by Mr Paul TANG that the question of legal aid should be considered outside the context of this Bill, the Chairman said that whether an amendment would be introduced to the Bill was subject to the further information on legal aid to be obtained by the Administration.
44.The meeting ended at 12:00 noon.
13 November 1996
* - away from Hong Kong
Last Updated on 10 December 1998