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 (Atg)
The Chairman outlined the matters for discussion which were noted and agreed by members.
Confirmation of minutes of meetings held on 18 June and 11 September 1996
2. The minutes of the meetings held on 18 June and 11 September 1996 were confirmed.
Meeting with the Administration
Police investigations of reportable deaths reported by other police officers
3. The Administration maintained the view that the present arrangements were appropriate. It pointed out that in the course of an investigation, the forensic pathologist, being a staff member of the Department of Health, represented an outsider with no vested interest involved. The role played by the police was only to assist the coroner in conducting the investigations, and the latter could seek assistance from the Attorney General to provide a Crown Counsel to assist him in his investigations.
4. Members were dissatisfied with the Administrations explanation which was only repeating the old argument without considering their views. The Chairman reiterated that what members requested was only to give the coroner the discretion to have independent investigators outside the police force to help and report to him, if circumstances so warranted.
5. Members agreed to defer discussion on this item until after the meeting with the Administration.
Legal assistance for persons attending inquests
6. The Chairman thanked the Administration for obtaining the relevant information from UK and Canada. The Administration informed members that there were three legal aid schemes in UK, all of which did not cover representation at inquests. However, the Lord Chancellor had the power to permit the Legal Aid Board to make special one-off grant in exceptional circumstances. On one occasion a grant was made to enable families to be represented at inquest, which was the Marchioness riverboat disaster. It was a very expensive case and this precedent had never since been followed. For Canada, information was provided from the Legal Services Society of British Columbia and the Legal Aid Plan of Ontario. In British Columbia, the Legal Services Society offered limited coverage for people attending inquests. It was only available to people who were material witnesses at such inquests. In addition, the applicants must be financially qualified for the services and they must face a reasonable chance of criminal prosecution that would lead to a jail sentence or loss of his livelihood, as a result of giving evidence at the inquests. In Ontario, the provisions were similar. A certificate might be issued to someone financially eligible if his or her interests might be affected, e.g. if there was a possibility of criminal or civil liability arising at the end of the inquest. In addition, it had a Group Applications and Test Cases Committee which authorized certificates to litigate matters of public interest. In very special cases, an interest group, e.g. the Black Action Defense Committee, would be issued with a certificate.
7. Mr Albert HO appreciated the resources implications involved in extending legal aid to coroners inquests. However, he was of the view that the Director of Legal Aid should be given at least the discretion to judge whether legal aid could be granted for special cases affecting public interest or involving very complicated issues such as disasters. Mr HO further quoted the Garley Building fire as an example of a case involving many deaths and complicated issues to illustrate the need for the Administration to grant legal aid to persons attending inquests. Though there might be resources constraints, the Administration should consider it more important to let the public know full details of the case and thus should facilitate the inquests by granting legal aid to the people attending them.
8. In response, the Administration said that if civil proceedings of an applicant were in progress, legal aid could be granted to the person for attending an inquest. However, Mr Albert HO pointed out that it was not the case in practice. He referred to the letter tabled at the last meeting showing that legal assistance was not provided for inquests; and, in any case, no legal representation was provided to clients attending inquests. Members also recalled that the representative from the Legal Aid Department had said at an earlier meeting that legal representation was rarely provided at coroners inquests and this was recorded in the minutes of the meeting. Members agreed that there was no point in arguing further over this point but irrespective of the provisions elsewhere, they had to come to a view whether there was a need for the public to be provided with legal aid for attending inquests.
9. In view of the financial implications, the Administration pointed out that it was necessary to tackle the issue under discussion from a wider perspective and the following points should be considered as well -
- if legal aid were to be extended to coroners inquests, what were the eligibility criteria for the applications; and
- what form of legal aid would be offered - legal advice only or providing legal representation at the inquest.
As a review on legal aid had been scheduled for early 1997, the Administration proposed to consider the matter along with other proposals regarding the scope of civil legal aid; and Members agreed.
Provision of relevant information to the family of the deceased if the coroner decides not to hold an inquest
10. With reference to the letter dated 3 October 1996 from Mr James TO on the above subject, the Administration said that when requested by the family, they had provided the required details as far as possible except for cases -
- which were still being investigated by the police after the coroner had decided not to hold an inquest; and
- where personal information of individuals was involved which should be safeguarded from release under the Personal Data (Privacy) Ordinance, references to these persons would be deleted.
11. Miss Margaret NG welcomed the answer of the Administration. However, as regards para. 10(a), she considered that there should be a general time limit beyond which the Administration should explain why they could not provide the information. As to the second category of cases, Miss NG considered that all information should be released except those which infringed upon privacy. She requested the Administration to define clearly the principles governing what it meant by private information and should provide an explanation to the applicant if the requested information could not be released for privacy reasons.
12. As regards the time lime for investigations by the police, the representative from the Royal Hong Kong Police Force explained that they would try to produce an investigation report for the coroner in 28 days. If complicated issues were involved, the coroner could give the police an extension of 28 days or a longer period as he saw fit. Once the report was submitted to the coroner, the investigation of the case for the coroner was considered to have been completed. If the coroner decided then not to hold an inquest, it was also up to the coroner to decide whether or not to release details of the report submitted.
13. Members pointed out that there were contradictions between the statements made by the Administration in para. 10(a) and the representative of the police in para. 12, as the latter had pointed to the fact that at the point when the coroner decided not to hold an inquest, the police investigation was already completed and the details of the case were ready for access by the party concerned. Following further discussions, it was concluded that para. 12 reflected the actual position. Members also noted that generally for homicide cases, inquests would not be held.
14. In response to members queries as to who would decide on the release of information and whether privacy protection was an overriding consideration, the Administration clarified that in general, coroners would not object to releasing the report compiled by the police and the Administration had no objection to the public obtaining the report direct from the coroner. However, as the report included, among other things, an autopsy report and witness statements, the Administration had to seek advice from the Legal Department on which parts should be deleted to protect privacy of the witness(es). Normally the names and addresses of the witnesses would not be released in accordance with the Personal Data (Privacy) Ordinance. Miss Margaret NG expressed her doubt whether the Personal Data (Privacy) Ordinance really forbade release of such information. Mr Albert HO also expressed his reservation about the withholding of details of witnesses as such information would be exposed if an inquest was held. The Chairman requested Senior Assistant Legal Adviser (SALA) to advise whether the release of such information was permissible. SALA said that he would need to examine the Personal Data (Privacy) Ordinance before advising on the matter.
15. The Administration added that clause 19 of the Coroners Bill provided that if the High Court, upon the application in open court of a properly interested person or the Attorney General, was satisfied that a coroner had failed to hold an inquest which ought to be held, the High Court might order an inquest to be held into the death of a person.
16. Members concluded that it was necessary to add a provision to allow family members of the deceased the right to have access to the investigation report if the coroner decided not to hold an inquest. It was agreed that both the Administration and SALA would study the Personal Data (Privacy) Ordinance to determine the type of information that could be released and to state it clearly in the provision.
17. Representatives of the Administration confirmed that they had no objection in principle to the proposal. However, they pointed out that the term "properly interested person" might be too wide for the purpose and there might be charging effect. In response, Miss Margaret NG remarked that "properly interested person" was already defined but the right could be limited to the family of the deceased person. As regards the cost of providing such a service, it could be recovered by making a charge for the service.
18. SALA referred to clause 53 and asked members to consider whether the amendments should be included in the Bill or in the rules to be made by the Chief Justice. Members considered that the right should be stated in the Bill but the details of the procedures could be included in the rules.
Definition of Pathologist
19. The Chairman referred to the letter dated 7 October 1996 from the Administration regarding the practical difficulties in defining "pathologist" and asked the Administration to review the need for a definition. He pointed out that the Medical Council was going to establish a Specialist Register and he asked the Administration to consider defining "pathologist" as a registered medical practitioner under the pathology specialty of the Specialist Register.
20. Mr Michael HO said that there were doctors in the Department of Health and the Hospital Authority not yet qualified as pathologists under the Hong Kong Academy of Medicine and reference to the specialist qualification would preclude them from performing autopsies.
21. As requested by the Chairman, the Administration agreed to review the need for a definition.
Right of family members of the deceased to retain a pathologist
22. SALA pointed out that under clause 6(3), the coroner had the discretion to specify a pathologist to conduct an autopsy. However, members were not satisfied with this arrangement. They considered that the family of the deceased should have the right to appoint their own pathologist either as an observer at the autopsy or to conduct a second post-mortem examination and it should be clearly stated in the Bill.
23. Representatives of the Administration informed members that they had to seek legal advice first before a decision could be made. They said that in special circumstances, the coroner could appoint a specialist pathologist from overseas. The Administration was worried that if the family of the deceased could retain a pathologist to conduct another autopsy, it might lead to a situation where diverse opinions from different pathologists would cause difficulties.
24. Mr Albert HO said that it was precisely because there might be different views that it was necessary for another autopsy to be carried out by an independent pathologist. The purpose of an inquest was essentially to consider the different views and let the jury decide. He therefore considered that it should be a right instead of a discretion. He pointed out similar views had been forwarded to the Administration by human rights organisations in Hong Kong. Members agreed and recommended to amend clause 6 to give family members of the deceased the right to retain a pathologist if deemed necessary.
25. The Administration considered that there were technical problems to be resolved. They pointed out that other properly interested persons might also wish to make a request and different members of the family might wish to appoint different pathologists. Members opined the possibility of many different pathologists being retained was quite remote. The Administration also pointed out that the death certificate would not be available until some time e.g. three months after an autopsy was performed and by which time the corpse might have been cremated. The Chairman said that even though the corpse might not be available by then, specimens might still be available for further tests. Moreover, by examining the autopsy report, another pathologist might have a different interpretation of the cause of death. The Administration agreed to consult the coroner and the Legal Department and report the outcome before the next meeting.
Proposed Amendment by the Administration
26. Members had no comments on the proposed amendment to Item 14 of Part I of Schedule 1.
Date of Next Meeting
27. As the Administration would require three weeks for consultation with the Judiciary and the Attorney Generals Chambers regarding members proposals, the next meeting would be held on 18 December 1996 at 10:45 am.
Police investigation of deaths in Police custody
28. Mr Albert HO proposed and members agreed that a provision should be made to empower the coroner to give directions to the Commissioner of Police to take such measures as necessary to ensure that the investigation into the death was conducted independently and impartially. It was agreed that the Clerk should write to the Administration regarding the proposal and requesting a reply within a week.
Legal aid for inquests
29. Members agreed that it was not realistic to insist on any changes in the context of this Bill and would therefore accept the Administrations proposal to consider the matter in the overall review of legal aid early next year. They considered that there should at least be discretion for the provision of legal aid in special cases.
30. The Chairman suggested that the Attorney General should be requested to make an undertaking in his speech during the Second Reading debate.
Close of Meeting
31. The meeting ended at 10:40 am.
Legislative Council Secretariat
27 December 1996
Last Updated on 10 December 1998