LegCo Paper No. CB(2)1178/96-97
(These minutes have been seen
by the Administration)
Bills Committee on the Coroners Bill
Minutes of the ninth meeting
held on Wednesday, 18 December 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)
Hon Michael HO Mun-ka
Hon James TO Kun-sun
Hon Albert HO Chun-yan
Hon Margaret NG
Member absent :
Hon Ronald ARCULLI, OBE, JP ] other commitments
Public officers attending :
- Mr Paul TANG
- Deputy Director of Administration
- Mr Stephen FISHER
- Assistant Director of Administration 2
- Miss Sarah WU
- Deputy Judiciary Administrator
- Mr Geoffrey FOX
- Senior Assistant Law Draftsman
- Mr Philip CHAN
- Principal Assistant Secretary (Security)E
Clerk in attendance :
- Ms Doris CHAN
- Chief Assistant Secretary (2)4
Staff in attendance :
- Mr Y S LEE
- Senior Assistant Legal Adviser
- Miss Joanne MAK
- Senior Assistant Secretary (2)4
Members briefly discussed the replies from the Administration.
Meeting with the Administration
I. Investigations into the deaths of persons while in Police custody
(LegCo Paper No. CB(2) 688/96-97 (01) )
2. Having considered the practical difficulties of the Administration, members accepted the Administrations proposal to add a new sub-clause(3) to clause 14 so that the coroner might request the Commissioner of Police to take necessary measures to ensure that the investigation into the death of a person while in Police custody was conducted independently and impartially. Members hoped that the proposed sub-clause would at least serve to remind the coroner that he, under the circumstances, should pay special attention to the need for independent investigation; and that he had the authority to make such a request and the Commissioner of Police would have to take the request into consideration.
3. Members had also considered whether the wording of "may request" should be changed to "may direct". In response, the Administration pointed out that, under the Police Force Ordinance, the Commissioner of Police was responsible to the Governor for the administration of the Police Force. It was not therefore appropriate for the coroner to "direct" the Commissioner of Police to take any measures regarding the investigation.
II. To give family members of a deceased person the right to ask for a copy of the death report if the Coroner decides not to hold an inquest into the death
(LegCo Paper No. CB(2) 688/96-97 (02) )
4. Members welcomed the Administrations confirmation that it had no objection in principle to releasing the death report if the coroner decided not to hold an inquest. However, they found that the Administrations proposed deletion of all the personal particulars of the witnesses unacceptable on the following grounds -
- It might be that only the family members knew that a certain witness had vested interests involved in the case. Thus, the family members would need to know the identity of the witness in order to judge the credibility of his statements; and on that basis, to appeal to the Attorney General to invoke clause 19 to request for holding an inquest.
- The argument of the Administration about protection of privacy of the witnesses could not stand because if the coroner decided to hold an inquest, the identities of the witnesses would be revealed anyway.
5. While recognizing the need to comply with the Personal Data (Privacy) Ordinance, Miss Margaret NG suggested that the Administration should inform the witness of the possible uses of the evidence at the time of collection and his consent to release it to family members of the deceased if the coroner decided not to hold an inquest. Once the witness had given his consent, there would be no problem in releasing his personal particulars. Miss NG also pointed out that if the witness was only told at the beginning that the evidence he gave would be used for police investigations, it might not be proper to release the information to the family members even after deleting the personal particulars. She therefore suggested to amend the Administrations proposed sub-clause to read -
"the coroner shall comply with the request in so far as it is consistent with the provisions of the Personal Data (Privacy) Ordinance";
The proposed wording aimed to give more flexibility to the Administration in handling the cases.
6. Mr Albert HO considered that, from the justice point of view, the overriding principle should be that family members should have access to the same relevant information whether an inquest was held or not. To enable the family members to have adequate information to appeal to the Attorney General, the identities of the witnesses should not be withheld. He was of the view that the Personal Data (Privacy) Ordinance should not be an obstruction to family members or other affected parties in obtaining useful information. When this principle was in conflict with the Personal Data (Privacy) Ordinance, the former should be upheld for the sake of public interest. He quoted a real case of traffic accident to illustrate that identities of the witness might lead to different views on whether it was an accident or a homicide. Mr HO said that justice would not be served if a life was lost and the family members were denied of the opportunity of knowing who were the key witnesses.
7. Mr James TO further argued that a decision made by the coroner as to whether or not to hold an inquest was itself a quasi-judicial decision. So to be consistent with the concept of general openness of judicial procedures, the coroners decision and every detail leading to it should be released to the family members.
8. The Administration explained that protection of privacy was not its only concern in proposing to delete the personal particulars of the witnesses. To be consistent with the rest of the provisions, the Administration was of the view that the right of obtaining the death report should be also granted to the nine groups of properly interested persons upon request. In view of the wide range of people involved, the Administration considered it necessary to exercise great care and control in the release of the personal particulars of the witnesses. The Administration was also worried that if the witness was informed beforehand that his statements together with his personal particulars could be released to the nine groups of properly interested persons, this might discourage the witness from giving true statements or any statement at all. This would adversely affect the police investigation.
9. The Administration further clarified that the personal particulars to be deleted would be the name and address of the witness (except for those who were public servants). The family members would have the full details of the case, including the autopsy report, recommendations for or against holding an inquest and the witness statements.
10. Members considered that the worry of the Administration was unnecessary because at the time when a witness gave evidence, he had no idea whether or not there would be an inquest held. If he was so worried about revealing his identity, he would in any case not say anything from the outset knowing that he might be asked to give evidence at an inquest. They therefore opined that the Administrations proposed arrangement would not change a potential witness decision whether to cooperate with investigators or not. Moreover, members reiterated the point made earlier that once an inquest was held, the identity of the witness would be revealed anyway.
11. In response, the Administration said that the fact that the witness was willing to attend an inquest to give statements in a proper forum did not imply that he was willing to have his name and address released to people who might use the data to harass him. However, members disagreed and argued that when an inquest was held, the witness might be harassed too for the evidence he had given at the inquest.
12. Senior Assistant Law Draftsman (SALD) explained that there were provisions in the Bill governing the protection of witnesses who gave evidence at inquests. The witness could report any harassment to the coroner, who would take steps to protect the witness. However, in the absence of such provisions to protect a witness when no inquest was held, the witness could not seek any protection when he was harassed.
13. Miss Margaret NG was dissatisfied with SALDs argument and pointed out that the Administration could make provisions to protect a witness from harassment when no inquest was held. She was of the view that if it was recognized that the family members of the deceased should have a right of access to the personal particulars of the witnesses, their right should not be affected just because the Administration found that it had to provide the information to other groups of properly interested persons as well.
14. SALD suggested that the problem could be resolved by the following arrangements -
- The Director of Administration could issue a statement advising the witness that in giving evidence in relation to the death of a person, he might be called as a witness if an inquest was held and his statements and references would be provided to the properly interested persons on their request if no inquest was held; and
- If the witness objected to releasing his name / address if no inquest was held, the police should take note of this and the relevant information would be deleted before the death report was released.
15. Miss Margaret NG agreed to first suggestion but proposed to further refine it by asking the police to develop some simple formulas of explaining the issue to the witness. However, as to whether or not a potential witness could dictate to the police under what circumstances that he would give evidence, Miss NG considered that it was not entirely for the potential witness to decide as he might feel obliged to do so out of public duty. However, SALD pointed out that a witness could be compelled to give evidence at the initial stage and summoned to give evidence if he refused when an inquest was held. This was however not applicable if no inquest was held.
16. In addition to taking into account the requirements of the Personal Data (Privacy) Ordinance, the Administration would also take into consideration members views in reviewing the matter. Mr Michael HO requested the Administration to expedite the necessary amendment the earliest possible or else members would move amendments themselves.
17. The Administration said that it would consult the Privacy Commissioner for Personal Data to see how its proposed amendment could comply with the Personal Data (Privacy) Ordinance, while addressing members concerns as far as possible. However, Miss Margaret NG objected to this and pointed out that the Administration in so doing would rule out other possible ways which were consistent with the Ordinance and also allow retention of the witnesses personal particulars. One of the ways was the first suggestion given by SALD as detailed in para. 14(a). The Administration pointed out that this suggestion would affect the operation of the police and thus they should be consulted to see if the option was practicable. In response to members query as to why it was necessary to seek the agreement of the police since they were obliged to take necessary measures to comply with the law if it so required, the Administration explained that consultation with the police was necessary in order to ensure that whatever proposed could work in practice.
18. In response to members enquiry, the Administration explained that the death report (COR9) included a detailed record of the incident, statements of the witnesses, an autopsy report, the investigation report and recommendations as well as the decision of the coroner whether to hold an inquest or not and other technical reports, if any.
III. To give family members of a deceased person the right to retain a pathologist to conduct a second autopsy on the deceased
(LegCo Paper No. CB(2) 688/96-97 (03) )
19. The Administration explained why they preferred to make use of administrative arrangements instead of amending clause 6 to give the family members of the deceased the right to retain a pathologist to conduct a second autopsy. The Administration confirmed that under rule 5(3) of the present Coroners Rules, family members and other interested persons were entitled to be represented at a post-mortem examination by a registered medical practitioner; or apply to the coroner to retain a pathologist to conduct a second post-mortem examination. The requests were then dealt with by the coroner on a case by case basis.
20. With reference to the letter from the Administration dated 17 December 1996 tabled at the meeting, Mr Michael HO inquired if it implied that the Hospital Authority (HA) was conferred with the power to overrule a request for a second post-mortem examination by the family members. In response, the Administration clarified that after an order was issued by the coroner to process such request, HA did not have the discretion to alter the decision made by the coroner.
21. Mr Albert HO inquired if it was in order that the family members, after receiving the corpse for burial, retain a pathologist to conduct a second post-mortem examination without informing the coroner. The Administration answered that the subsequent autopsy report would not be recognized by the coroner since he had not authorized any pathologist to conduct such a post-mortem examination.
22. Members agreed to follow up on the definition of "pathologist" after Special Register had been established.
Any Other Business
Correction of errors in the Death Register
23. The Administration informed members that under section 27(d) of the Births and Deaths Registration Ordinance (Chapter 174), any erroneous information on the causes of death, once sent to the death register, was not allowed to be amended even it had been proved to be wrong. The Administration considered that the situation was very unsatisfactory in view of the serious implications of a wrongly reported cause of death. As the Coroners Ordinance was now being amended, the Administration proposed to add a clause to the effect that if the coroner had not held an inquest to examine the cause of death, the cause of death thus concluded could not be amended unless the coroner subsequently held an inquest to re-examine the case, and the subsequent findings could then be used to amend the death register. However, if the erroneous cause of death was concluded after holding an inquest, the coroner could only have it amended either if he could prove that it was caused by a typographical error in his correspondence with the Registrar of Births and Deaths or after conducting the second autopsy. Members requested to be provided with details of the proposed amendment first before they decided whether they should deliberate it in another meeting.
24. There being no other business, the meeting ended at 12:15 pm.
Legislative Council Secretariat
5 February 1997
Last Updated on 10 December 1998