RE FONG CHI MING

High Court Miscellancous Proceedings
No.1589 of 1987

HEADNOTE

Judicial Reviow - Coroner's Inquest - Jurisdiction of the Court - Grounds for quashing verdict - Sufficiency of Evidence - Errors of Law.

Per Curiam - Procedure at inquests - duty of Counsel

IN THE HIGH COURT OF JUSTICE

HONG KONG

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MISCELLANEOUS PROCEEDINGS NO. 1589 OF 1987

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J U D G M E N T

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1. On the 23rd of December 1985, some 255 refugees, mainly Vietnamese, on board a fishing vessel were intercepted in Hong Kong waters and were taken to a pontoon at Western Quarantine Anchorage.

2. On December 24th, two boats-loads of Immigration Officers interviewed those refugees. They were divided into single and married people. Later that day, one of the refugees, Yeung Tat-fung, was taken off by police launch, but he died before he reached hospital. He had unfortunately suffered very serious injuries. His liver was lacerated; the head of his pancreas was crushed; he had 3 broken ribs, 22 areas of bruising and 13 abrasions. It was clear from the report of the pathologist that he had suffered a serious and violent assault.

3. The Immigration Officers concerned in this matter - 3 in the main-made rather perfunctory reports concerning the circumstances surrounding the injuries to this refugee.

4. Some time later for reasons into which it is not necessary to go in the course of this judgment, investigations were carried out which demonstrated that this refugee had died in unusual and tragic circumstances and, as was very proper, an inquest was held.

5. The inquest which took place lasted a substantial time, some 38 days of hearing; at the conclusion of that inquest, the jury named one of the Immigration Officers concerned, Mr. Fong Chi-ming, as being the person who had caused the death of the illegal immigrant. As a result of that he was charged with manslaughter, and I am told that he has been suspended from duty and faces now the criminal charge of manslaughter.

6. Mr. Tang on behalf of the Applicant seeks to quash that verdict. Leave was given for this motion by Mr. Justice Rhind and it was on the basis of the statement filed pursuant to the rules which sets out a number of grounds for quashing that verdict. Mr. Tang, as one would expect of Counsel of experience, abandons the bulk of those grounds.

7. Whilst I naturally applaud that decision, it is only fair to say that a number of matters which occurred in the course of this inquest did cause me some concern. First, counsel although they have a duty to their clients also have a duty to the Court before whom they appear, and they should temper their natural zeal in asking questions by only asking those questions which are relevant and necessary for the purpose of their particular duty. There was a very large number of questions put by counsel in this case which, in my judgment, were quite irrelevant and unnecessary.

8. Mrs. Spruce who appeared on behalf of Mr. Fong Chi-ming, did not ask of many witnesses any questions at all. In my judgment that was a commendable practice, and I think it right to point out that counsel should be careful when being instructed in this sort of case not to put questions which do not really go to the relevant matters. It was no wonder this case took many days and the Coroner was put into a difficult position having to rule on all sorts of objections which arose. I am sure it made his function in the course of this inquest very difficult.

9. Secondly, the conduct of the inquest should not resemble that of a criminal trial. I see no reason why Counsel should 'put their client's case' to a witness, nor conduct a cross-examination as though someone was on trial before a Judge and Jury of Seven. No forensic battles should occur in the court. The object of the inquest is to inquire into the death of a person and investigate the circumstances surrounding that death, but it is not the role of Counsel nor the Coroner and Jury to ensure that someone is found responsible for that death. For a jury of 3 in this day and age to return a verdict which does find someone responsible, for example for causing a death by murder or manslaughter, is a grave responsibility.

10. Thirdly, although it is said that the rules of evidence do not apply, in my judgment they should in inquests such as this one which involves a serious crime. Counsel who put questions and the witness who answers them should follow the rules of evidence. Hong Kong Inquests are different from English Inquests, which no longer can find someone guilty of murder or manslaughter. Hong Kong Inquests are therefore more than fact finding exercises - the Jury does have power to name a person as a result of which he could be charged, for example, with murder. The approach of the English Courts (R v Manchester Coroner Ex P. Tai (1985 1 QB 67) is an example) is not applicable to Hong Kong. In all inquests where a person may face such a serious charge, care should be taken to exclude hearsay evidence.

11. Fourthly, objections which involve points of law, or question the impartiality or fairness of the proceedings, or are dealing with some serious and important point should be made in the absence of the Jury. Further any rulings on these given by the Coroner should also be in the absence of the Jury. Otherwise, there is a risk that the Jury may be unfairly influenced.

12. Mr. Tang takes two main points before me. He says first that the verdict, which the jury returned, was not supported by sufficient evidence and, secondly, that there were either misdirections, or non-directions in the Coroner's summing-up.

13. It appears that this is the first time in Hong Kong a judicial review has been sought of a Coroner's Inquest. From the 1880s in England the old prerogative writ of "certiorari" was used to remove into the Queen's Bench Division and quash an inquest which was bad on its face - see The Queen v Clerk of Assize of Oxford Circuit (1897) QB 370. This was a common law power and statutory powers were also available - see Coroners Act 1887.

14. In R v Surrey Coroner, Exparte Campbell (1982) QB 661 the Divisional Court concluded that there were only narrow grounds for challenging a Coroner's Inquest and refused to apply the wider Anisminic Principle (Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147. In O'Reilly v Mackman (1983) 2 AC 237, however, Lord Diplock's Statement of the law made it clear that the Anisminic principle applied to inferior courts as well as inferior tribunals. Since the recognition that the Surrey Coroner case was wrongly decided by the Divisional Court in R v Manchester Coroner Ex P. Tai, judicial review has been granted to quash jury's verdicts for errors of law, or breaches of the rules of natural justice. Further, the scope of judicial review permits the Court, in appropriate cases, to examine the evidence and I gratefully cite the approach of Watkins L.J. in R v West London Coroner Ex P. Gray (1987) 2 WLR 1020 when he said at p. 1031

"It used to be said, and maybe by some still is, that insufficiency of evidence is no ground for quashing a coroner's jury's verdict. I cannot subscribe to that. The development of judicial review to its present state with its devotion to, amongst other things, natural justice, cannot possibly allow verdicts by juries at inquests to stand which are based upon no or wholly insufficient evidence."

15. In my judgment, therefore, a verdict at an inquest in Hong Kong is amenable to judicial review and either of the two grounds which Mr. Tang takes, if made out, would justify me in quashing the verdict.

16. The evidence, which I do not repeat in detail, concentrated on two main factors. First, there were three Immigration Officers who said that an illegal immigrant, Mr. Chang, had assaulted the deceased, either by kicking or hitting him, and he was the person who caused the injuries and from which the deceased died.

17. Secondly, there was on any view an unusual method of dealing with this matter by the Immigration Officers concerned.

18. It is no part of my function to say whether or not that involves some crime, or some act not in accordance with their duties. That is a matter either for the Attorney General or for the Commissioner in charge of the Immigration Service.

19. The officers said that the illegal immigrant had confessed to this crime. However, when this matter was later put to him, Mr. Chang denied that he had caused any injury whatsoever to this refugee. He said that the confession statement really was forced out of him. He implicated directly in his evidence and also through cross-examination by counsel, one or more of the Immigration Officers. There is also no doubt, as has been pointed out to me very carefully by Mr. Wong, appearing as he does for the Coroner, that there was a period of time during which the Immigration Officer, Fong Chi-ming, and the deceased were alone in the cabin of this police boat. The course of this inquest, centred upon the confession statement of Mr. Chan and his involvement in this matter. I have read every page of the depositions, which have been given to me over the weekend amounting to some 650 pages, and I found but a few references to the potential implication of the Immigration Officers.

20. In my judgment, looking at the matter objectively and setting aside the natural antipathy, which arises over the circumstances of this unfortunate refugee's death, there was no sufficient evidence which was before the jury that Fong Chi-ming had viciously beaten this man as a result of which he died. Perhaps a more correct way of putting it is there was no sufficient evidence before the jury so that the jury could be sure that he had done that.

21. Suspicion was raised and Counsel speculated, but there was no real evidence on which a jury could properly act.

22. The second point raised by Mr. Tang is that there were misdirections of law or non-directions.

23. Mr. Sinclair, a Coroner of some experience, was faced, as I said, with a very difficult matter. He had in the course of the inquest to deal with a number of objections, some of substance and some wholly insubstantial. There was a mass of unnecessary evidence which had been got in by cross-examination. He was naturally concerned that his summing up to the jury should be as succinct as possible. It is always difficult to condense a summing up for a case which has lasted 38 days. It does not assist the jury to have a very long summing up and the approach of the Coroner was both laudable and correct. The whole structure of this summing-up, however, was aimed at one matter and one matter only, namely, was it Chang who should be named as the person responsible for this death. Virtually all of the summing up is directed to that aspect of the case, namely, the evidence in support of Chang's guilt which comprised his confession and the testimony of the three Immigration Officers, and the evidence which threw doubt on those two matters.

24. It is not surprising, therefore, when one recognises the structure of the summing up, that the directions in law are towards the same end. At p. 9 are found the standard directions on murder and manslaughter, At page 10 the Coroner says,

"I must tell you however that you should only return a verdict of murder or manslaughter if you can name the person or persons responsible. If you can name an individual as the assailant having found the matters early recited proved against him - as an individual ...."

In my judgment, that is a misdirection. A direction should have been given to the jury that before the jury can name a person either responsible for manslaughter or for murder, they must be sure that he is the person responsible, alternatively that they must be satisfied beyond reasonable doubt. First of all the jury have to examine the circumstances surrounding the death to decide whether or not it is murder, or whether or not it is for example, manslaughter. Once they have decided that it is manslaughter, they then have to go on to decide whether they are sure they can name someone.

25. The Jury must not be left with the impression that although they might be sure that the facts amount to murder or manslaughter, their naming of the person responsible is not to the same stringent standard of proof. There is no application before me concerning Chang, but I note that at p. 17 the Coroner said, "Now if, as Mr. Fong and Mr. Keung say, Tsang Hing-wan did assault the deceased, then there can be no doubt but that he killed the deceased, and that he and no other must be the person named in your verdict. Their testimony of the events permits of no other construction." It is for the jury to decide whether or not they accept the evidence and whether or not that amounts to them being sure that they can name Mr. Chang. Furthermore, this direction illuminates other portions of the summing up, because the jury may have been left with the impression that if they thought that the Immigration Officers were telling lies then one of them must have killed the deceased. At p. 33, the Coroner says,

"Now members of the jury you are entitled to ask yourself: if events in the cabin occurred in the way described by Fong Chi-ming, Keung Wang-hei and Ng Sze-wah then (i) Why was no report ever made to the police about the assault on the deceased? (ii) Why was it not even suspected that there was a connection between the assault and the deceased's conversation and condition ...? (iii) Why was Hing-wan repatriated to China some twenty hours after it was know to many officers that the man who had earlier been attacked by Chan had died?"

Again, the jury were being told, both in this and other passages that these matters would reflect upon whether or not they could be sure of Chang's guilt, but the jury may have been left with the impression that if they thought that the Immigration Officers were lying, then that would be a matter which must indicate that those who told the lies were themselves guilty. Mr. Tang has reminded me of the opinion of the Privy Counsel given through Lord Diplock in 1963 in the case of Broadhurst v. The Queen (1964) AC 441. At page 457 the learned Judge says

"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if the accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the Judge to make it clear to them that this is not so."

26. What happened here was that the jury were taken meticulously through the evidence for and the evidence against the involvment of Mr. Chang in the death of this refugee. They were told the relevant strengths and weaknesses of the evidence concerning Mr. Chang and it was left to them to decide whether or not he was a person whom the jury could name as responsible for the death.

27. Where do I find in this summing-up the directions on their approach to naming anybody else?, or the evidence which they should consider before so doing? There is nothing at all, because the Coroner must have recognised when he prepared the summing-up that nobody else could have been named, and Mr. Tang adds that no one else could have been named because there was no sufficient evidence against anybody else. That submission is really unarguable. In these circumstances, it was incumbent on the Coroner to direct the Jury that unless they were sure they could name Chang, then they should return a verdict of Homicide by a person unknown.

28. In my judgment, this summing up is very seriously flawed both in directions as to the law and as to directions on the facts of the case if the jury were to consider the case against any person other than Chang. They clearly considered the case against Chang because they did not name him, but their actual verdict is unsupported by the evidence. I reach my conclusion with a certain amount of reluctance, because this inquest took some 38 days involving people coming from mainland China to give evidence. The inquest no doubt caused considerable strain and anxiety not only to the 43 witnesses, but to all concerned, but my duty is to rule upon the application which is made. I have no doubt that the summing up was seriously flawed, and that there was insufficient evidence to justify the verdict. Mr. Tang's two grounds are made out. If it is considered by the Coroner or by any appropriate person that a further inquest should be held that is a matter not for me to say anything about, other than if another inquest does take place, I do trust that it will be conducted by all parties in a manner which gives assistance to the Coroner and does not take up an inordinate amount of time. In the process of investigation into a death, advocacy and forensic skills should play a minor part.

29. I grant the application and quash the verdict. Having heard argument from Counsel, I order the Respondent to pay the costs of these proceedings.