THE COMMISSIONER OF POLICE v. THE CORONER OF HONG KONG

1996 M.P. No. 4499

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H E A D N O T E

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When the High Court has quashed the verdict of the jury at an inquest, it is for the Coroner, and not the High Court, to decide whether there should be a new inquest.

1996 M.P. No. 4499

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. INTRODUCTION

In September 1996, an inquest was held to inquire into the death of a man known only as Uncle Hung. He had been shot by a police officer, and had died as a result of his wounds. A jury was empanelled to determine the cause of the man's death. At the conclusion of the inquest, the jury, by a majority, returned a verdict of unlawful killing. It added a rider about the use of firearms by young and inexperienced police officers. In this application for judicial review, the Commissioner of Police seeks, amongst other things, to have the verdict of unlawful killing quashed.

THE FACTS

2. On 21st September 1995, three police officers went to a building in Hong Lok Street to investigate an allegation that a security guard there had been attacked. They went to the roof of the building. They found the deceased there. The evidence of the police officers as to what happened then can be summarised as follows. The deceased was abusive to them. He had a chopper with him and threatened to kill them with it. The police officers retreated. One of the police officers slipped, and the deceased started to attack him with the chopper. He managed to parry the blows. One of the other police officers shouted to the deceased to stop, and warned the deceased that he would open fire if the deceased did not. The deceased continued with his attack. The police officer fired a shot. The deceased continued with his attack, and the police officer opened fire again after giving the deceased another warning. The deceased fell to the ground, and was certified dead on his arrival at hospital.

THE SUMMING-UP

3. In his summing up to the jury, the coroner directed the jury that three possible verdicts were open to them on the evidence: death by unlawful killing, death by lawful killing, and an open verdict. The principal issue which the jury had to consider was whether the police officer who had fired the fatal shots had been lawfully acting in defence of the other police officer who was being attacked. That issue required the coroner to direct the jury on the circumstances in which the law permits force to be used in defence of someone else.

4. The coroner correctly directed the jury that it would only have been lawful for the police officer to use his firearm if a lesser degree of force would not have been able to achieve his purpose of protecting his fellow officer from at least serious bodily injury. However, what the coroner went on to tell the jury was that that question was an objective one. It had to be answered from the standpoint of the reasonable man. Would the reasonable man have thought that a lesser degree of force would not have been able to achieve the protection of the police officer from at least serious bodily injury.

5. That that was the nature of the coroner's direction to the jury is apparent from a number of passages in the summing-up. He referred to reg. 29-02(4)(a) of the Police General Orders which permit police officers to discharge a firearm "to protect himself or any other person from death or serious bodily injury". He then identified two questions for the jury to consider. The first question was : "Did the officers face death or serious bodily injury?" In respect of that question, the coroner's direction to the jury was as follows:

"What you must determine is whether [in] all of the circumstances it was reasonable for the officer to consider that [the chopper] was being used with the intention of causing death or serious bodily injury. I have already commented to you that it is not enough for them to say, 'I thought so'. It must be established that a reasonable man would have thought that death or bodily injury might ensue."

The second question was: "Could a lesser degree of force have achieved the purpose?" In respect of that question, the coroner's direction to the jury was as follows:

"No matter how sympathetic you may feel to [the] officer..., if you determine that a reasonable man would accept, 'Well, yes, a lesser degree of force would have achieved the purpose, I am sure [of] that', then it is your duty to return a verdict of unlawful killing."

6. However, the correct test in law is no longer an objective one. The retreat from objectivity began with Palmer v. R. [1971] AC 814. At p.832A-B, it was said:

"...it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

This approach was described in R. v. Shannon (1980) 71 Cr. App. R. 192 at p.194 as

"a bridge between what is sometimes referred to as 'the objective test,' that is what is reasonable judged from the viewpoint of an outsider looking at a situation quite dispassionately, and 'the subjective test,' that is the viewpoint of the accused himself with the intellectual capabilities of which he may in fact be possessed and with all the emotional strains and stresses to which at the moment he may be subjected."

The movement away from objectivity was continued in Beckford v. R. [1988] AC 130. At p.145H, it was stated that

"...the test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another."

That was described in R. v. Man Wai-keung [1992] 1 HKCLR 89 at p.94 as moving "the focus from the assessment of the response to the assessment of the danger as seen by the person being attacked and squarely [introducing] a substantial subjective element into that assessment". The court preferred the word "genuinely" to "honestly".

7. Accordingly, the defect in the coroner's summing-up was that he did not direct the jury that the question whether the degree of force which had been used was reasonable in the circumstances had to be judged by what the police officer genuinely believed the circumstances to be, and what he genuinely believed to be reasonably necessary in those circumstances to protect his fellow officer from being seriously injured.

CERTIORARI

8. I have considerable sympathy for the coroner. The proceedings over which he presided were inquisitorial, and it may be that he did not have the benefit of argument about the current legal position in an evolving area of the law. But to his considerable credit, the coroner agrees that his summing-up was defective in the respect I have identified. Indeed, before these proceedings were commenced, the coroner himself drew the Attorney-General's Chambers' attention to the misdirection which by then he acknowledged the summing-up contained.

9. Since it cannot be said that the jury would inevitably have reached the same conclusion if it had been given the correct direction in law, the verdict of the jury cannot stand. I therefore make an order of certiorari quashing the jury's verdict of unlawful killing. Equally, it cannot be said that the jury would inevitably have added the rider to its verdict if it had not brought in a verdict of unlawful killing. The order of certiorari therefore has to quash the rider which the jury added to its verdict as well.

DECLARATORY RELIEF

10. The more contentious question relates to the declaration which the Commissioner of Police seeks as well. He asks the court to declare that the only correct and proper verdict on the evidence was a verdict of death by lawful killing. I doubt whether the court has jurisdiction to grant the declaration sought. The court would in effect be substituting its own verdict for that of the jury. As it is, I have read the transcript of the evidence of the police officers. I think it very unlikely that a properly directed jury would have returned a verdict of unlawful killing in the light of that evidence. However, I would not have been able to say that a verdict of lawful killing was the only proper verdict which the jury could have brought. For all I know, there may have been aspects of the evidence of the police officers which the jury did not accept. I therefore decline to make the declaration which the Commissioner seeks.

A NEW INQUEST?

11. The final question, then, is whether there should be a new inquest. In the U.K., once the High Court's supervisory jurisdiction has been engaged, the court can direct that a new inquest be held if the court decides that to be appropriate: see R. v. South Powys Coroner's Court ex p. Jones [1991] COD 14, and the other cases cited in Jervis on Coroners, 11th. ed., para. 19-49, footnote 97. However, in the U.K., the holding of an inquest is mandatory when there is reasonable cause to believe that the deceased died in certain specified circumstances: see section 8(1) of the Coroners' Act 1988. In Hong Kong, the position is different. The decision as to whether an inquest should be held is for the coroner: see section 6(1) of the Coroners Ordinance (Cap. 14). It would not be right, therefore, for me to direct that a new inquest should be held or to declare that a new inquest is unnecessary. Whether a new inquest should be held is a matter which the coroner must decide for himself.

12. Mr. Nicholas Bradley for the Commissioner of Police, and for the officer who fired the fatal shots, submitted that there was no need for a further inquest. The absence of a new inquest would result in an open verdict being treated as having been recorded: see R. v. St. Pancras Coroner's Court ex p. Higgins [1988] COD 8. The relevant facts, so Mr. Bradley submitted, have already been ventilated in public. The jury's rider, though quashed, will have been noted, and the Commissioner will be deciding, in the light of this case, whether further action relating to the training of junior officers in the use of firearms needs to be taken. All those are arguments to be addressed to the coroner, although the coroner may well conclude that fairness to the deceased requires the holding of a fresh inquest. It is always a matter of serious concern when a man dies at the hands of the police. The coroner may think that the circumstances of the deceased's death in this case were such that they have to be adjudicated upon, not simply ventilated, in public. A new inquest may be the price which has to be paid when a tragedy of this nature occurs.