WILMES FRANZ JOSEF v. CORONER, WEST KOWLOON COURT

CAMP 527/2021

[2022] HKCA 949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 527 OF 2021

(ON AN INTENDED APPEAL FROM HCA NO 1915 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  The plaintiff’s amended statement of claim indorsed on the amended writ of summons was struck out by Master Man on the grounds that it disclosed no reasonable cause of action, was frivolous or vexatious, or was otherwise an abuse of the process of the court. The action was consequently dismissed.  The plaintiff appealed to a judge in chambers.  After a hearing, Coleman J dismissed the appeal in his judgment handed down on 10 March 2021 (“Judgment”).[1] The plaintiff, believing he needed leave to appeal, applied for leave by summons dated 24 March 2021.  At the hearing of the summons on 29 June 2021, since leave was not in fact required because of the provisions of Order 59 rule 21(2)(b)  of the Rules of the High Court (Cap 4A), Coleman J made no order on the plaintiff’s summons, but pointed out in his decision[2] that the plaintiff could make an application for an extension of the prescribed time, which had by then expired, for serving a notice of appeal. 

2.  It was apparently not drawn to the attention of the judge that since an amendment of Order 59 rule 15 in 2017,[3] such an application may be made to him whether before or after the expiration of the time limit.  Be that as it may, now that the plaintiff has made an application to the Court of Appeal by summons dated 18 November 2021 and written submissions have been lodged by the parties pursuant to the directions of the Registrar of Civil Appeals, we shall determine the application.  We consider it appropriate to do so on the basis of the written materials before us pursuant to Order 59 rule 14A.

Background

3.  The matter has arisen from the death of the plaintiff’s wife, Mrs Wilmes, on 19 April 2018 at Queen Mary Hospital (“QMH”).  The background is set out in the Judgment which we adopt as follows:

“ 6. Mrs Wilmes had had a history of breast cancer with multiple metastases. On 9 March 2018, she was admitted to QMH due to shortness of breath and was found to have right pleural effusion. Pleural drainage was carried out on 13 March 2018 and analysis of the pleural fluid revealed adenocarcinoma. She also developed acute renal failure, leading to left uretal stent and the insertion of bilateral percutaneous nephrostomy tubes. On 17 March 2018, she vomited and developed desaturation and fever, and was intubated. Multi-bacterial strains were found in her endotracheal aspirate. A suggested tracheostomy was rejected by Mr Wilmes, and Mrs Wilmes’ condition deteriorated until she passed away on 19 April 2018.

7. The initial cause of death stated by Dr Wong Kin Chung on the Form 18 Death Certificate was “aspiration pneumonia with underlying metastatic breast cancer”, but it was subsequently amended to remove the word “aspiration”. The amendment is part of what has raised issues and queries from Mr Wilmes.

8. On 25 April 2018, the QMH made a ‘Report to the Coroner of A Death’. The Report stated the reason for reporting the case to the Coroner was because of “uncertain cause of death (disputed by husband)”. I shall return to what Mr Wilmes says about that – see below. The Report also requested a post-mortem examination.

9. On 27 April 2018, the Coroner made an order to the Pathologist (“Dr Beh”)  at QMH Mortuary to perform an autopsy on the body of Mrs Wilmes. Further, on 11 May 2018, the Coroner directed the police to conduct an investigation into the death of Mrs Wilmes and to compile a Death Investigation Report.

10. Mr Wilmes sought to challenge the autopsy order, and commenced two sets of proceedings, HCMP 901/2018 and HCAL 1413/2018. Both challenges were refused by Andrew Chan J. The autopsy was performed on 8 October 2018. Dr Beh issued the autopsy report on 10 January 2019.

11. It is fair to say that in various correspondence between Mr Wilmes and the Coroner, Mr Wilmes made requests for a number of documents and other information. The Coroner says that the current proceedings arose from the series of request for information and/or documents, but Mr Wilmes says that is a mischaracterisation of the underlying complaint giving rise to these proceedings.

12. The autopsy report and various other records were provided to Mr Wilmes on 5 March 2019.

13. A Preliminary Death Investigation Report (“DI Report”)  was received by the Coroners’ Court on 24 June 2019. On 27 June 2019, the Coroner instructed the Police to obtain an independent medical expert report to comment on the causes and circumstances leading to the death of the deceased.

14. After the Coroner had informed Mr Wilmes on 17 October 2019 that the DI Report could only be provided to him after decision whether to hold a death inquest had been made in accordance with section 13 of the Coroner’s Ordinance Cap 504 (“Ordinance”), and that other information or documents requested could not be provided as they fell outside the ambit of section 13, Mr Wilmes commenced the present proceedings on 18 October 2019.

15. In correspondence starting in February 2020, an extension of time was sought and agreed for the Coroner to file his Defence. From the correspondence on behalf of the Coroner, it is apparent that the requests for extension of time were in part to facilitate the Coroner’s decision-making as to whether or not to hold an inquest, and in part the consequence of the closure of the court registries in light of them public health concerns. During the last agreed extension, which Mr Wilmes appears to have considered would include a general standstill on all activity by the Coroner, the Coroner went ahead to conclude his decision on whether or not to hold an inquest.

16. Indeed, on 12 May 2020, the Coroner decided not to hold an inquest into the death of Mrs Wilmes. In reaching that decision, the Coroner considered the autopsy report and the report prepared by the independent medical expert Dr Chan Chi-mui Miranda (“Dr Chan’s Report”), the medical history of Mrs Wilmes and circumstances of her death. The Coroner found “pneumonia” to be the direct cause of death and “metastatic adenocarcinoma” as the intervening cause of death. The Coroner concluded that Mrs Wilmes died of natural causes, so that it was not necessary to hold a death inquest into her death.

17. On 19 May 2020, copies of the DI Report and Dr Chan’s Report were provided to Mr Wilmes.

18. During the last granted extension of time within which to file a Defence, the Coroner issued the strike out application.”

4.  The plaintiff’s amended statement of claim, filed on 22 June 2020, stated as follows (sic):

“ The plaintiff’s claim is for Tort of Misfeasance in public office committed by the Coroner, West Kowloon Court leading to erroneous decision-making on his part as to neglecting to order a death inquest in the face of obvious facts/events necessitating such order. His purported reliance in arriving at that decision supposedly premised on information brought to his attention at the time of the case at issue being reported to him, gained after taking notice of the contents of the Autopsy Report, the Police Death Investigation Report and evaluating the ‘Independent Medical Expert Opinion’. In the process of so doing, he disregarded, against better knowledge, pivotal factional details requiring clarification/confirmation by way of a death inquest. The statements made afore are to be considered an extension/complementation of those transpiring as of being descriptive of causes of action contained in the affidavit on file with the court and the Coroner, having been filed as of 18. day of October 2019. Further detailing of causes of action is contained in the appended documents. Furthermore, the appended exhibits bear out, that the behaviour characterised above of the coroner is continuing at the time of this writing in that current requests by Mr Wilmes for complete information according to the stipulations of the Coroners Ordinance are not being responded to. The legal remedy envisaged and hereby applied for is that it be ordered by The High Court, according to Cap. 504 Coroners Ordinance, Part III, Section 20, Rule 1 (a), that a death inquest be held. The substrate for “… which ought to be held; …# is provided for by the appended particulars.”

5.  As explained in the Judgment at §23, the appended documents referred to in the amended statement of claim are within the plaintiff’s affirmation also dated 22 June 2020.  They consisted of (i) a 4-page document called “Document B”, which was the plaintiff’s detailed commentary on the letter from the Coroner’s Court to the plaintiff dated 12 May 2020; (ii) a triage form relating to Mrs Wilmes providing diagnoses made or maintained as of 17 March 2018; (iii) attending physician’s recorded remarks as stated on 9 and 17 March 2018; (iv) a retrospective entry in the medical records relating to the events on 17 March 2018; (v) a letter from the plaintiff to the Coroner dated 27 May 2020 asking for copies of the information he requested, together with attachments to the letter; (vi) a MEWS observation chart on 17 March 2018 relating to Mrs Wilmes; and (vii) the letter from the Coroner’s Court to the plaintiff dated 12 May 2020.

6.  In Document B, after a paragraph-by-paragraph critique of the Coroner’s Court’s letter, the plaintiff set out what he says is the “real story”, including the following:

“ Summary description of clinical course: life threatening derangements of laboratory parameters (e.g. potassium level)  were successfully corrected by attending to the renal dysfunction; drainage of pleural effusion was unduly delayed. Inflammatory processes relating to the lungs and/or the urinary system were not a problem. In the early afternoon on March 17, 2018 the plaintiff witnessed in the presence of other family members profuse voluminous both trans-oral and trans-nasal vomiting of a semi-viscous fluid not containing any particulate matter. These events were further witnessed by the nursing personnel and later described by the plaintiff to the physician on duty – Dr. Tiffany Sum. The plaintiff demonstrated samples of the regurgitated fluid to her for her inspection and cautioned against not taking into account potential compromise of pulmonary function due to aspiration of that fluid. The plaintiff noted that later an antiemetic was applied by the physician. No nasogastric tube was placed. The essentials of the further course are a matter of record. The name of the physician, Dr. Tiffany Sum, is conspicuously absent from the witness lists as provided by the police and the ‘independent medical expert witness’.”

The Judgment below

7.  In his Judgment, the judge noted that the only cause of action relied upon by the plaintiff is the tort of misfeasance in public office, and that the only remedy sought is an order that there should be an inquest.[4] The judge took the constituent elements of the tort from the case of Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1, 191 and Tang Nin Mun v Secretary for Justice [2000] 2 HKLRD 324, 326-328, which he summarised as follows:[5]

“ First, the Coroner must be a public officer. Secondly, the conduct complained of must have been by the public officer in the exercise of public functions. The third requirement concerns the state of mind of the Coroner. Fourthly, regard must be had to the elements of proximity, causation, damage and remoteness.”

8.  So far as the mental element is concerned, the judge referred to the three variants labelled “targeted malice”, “untargeted malice” and “reckless untargeted malice” respectively,[6] and quoted passages from Ribeiro JA’s judgment in Tang Nin Mun which made clear that a plaintiff has to establish that the officer acted in the knowledge that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member or the officer’s intent or knowledge was directed at the harm complained of, or at least to harm of the type suffered by the plaintiff.[7]

9.  After reciting the parties’ submissions, the judge went on to analyse the plaintiff’s pleading.  He accepted that the plaintiff had identified the Coroner as a public officer, that he was exercising his powers as a public officer, and the acts or omissions alleged to amount to misuse of powers.[8]  The judge then came to the critical question of mental element, and stated:

“ 64. But the central question on this appeal remains whether Mr Wilmes has pleaded anywhere in the ASOC, or his 1^st or 2^nd affirmations, the requisite mental element on the part of the Coroner. By reference to the various potential formulations identified above, the pleaded assertions must amount to an allegation of either (1)  targeted malice (that is, conduct specifically intended to injure the plaintiff)  and/or (2)  untargeted malice (that is conduct in the knowledge that there is no power to do the act complained of and that the act will probably injure the plaintiff). As regards the latter, including if reliance is place[d] on reckless indifference, the pleading must be of a state of mind showing (a)  the Coroner acted with the intent or in the knowledge or [was] reckless as to the fact that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member and (b)  the Coroner’s intent or knowledge was directed at the harm complained of, or at least to harm of the type suffered by the plaintiff.

65. However liberally one approaches the pleading (including the affirmations), I do not think Mr Wilmes has pleaded that the Coroner engaged in conduct specifically intended to injure him. Nor do I think Mr Wilmes has pleaded that the Coroner knew he had no power to do those things complained of and that they would probably injure Mr Wilmes. Nor, again however liberally one approaches the pleading, do I think that Mr Wilmes has pleaded that the Coroner acted with the intention or in the knowledge or being reckless as to the fact that his act would probably injure Mr Wilmes and that the Coroner’s intention or knowledge was directed at that harm.

66. Mr Wilmes submissions perhaps came closer to alleging bad faith in the sense of the exercise of public power for an improper or ulterior motive. But I do not think the necessary elements of the tort were all pleaded. Nor is there a plea that the Coroner did not have an honest belief that his acts (giving rise to the case)  were lawful.

67. In short, there is no proper and necessary pleading of the mental element, nor of the factual basis forming the requisite mental element of mind on the part of the Coroner.  Further, where damage has not been pleaded, there does not seem to me to be a pleading of what harm was suffered by Mr Wilmes as a result of the Coroner’s act, and how the Coroner had a subjective intent to cause such harm.  I do not think that it is sufficient for there to be some suggested implicit pleading of damage or harm.  The alleged harm must be precisely identified, so that there might be a pleading that the precisely identified harm was intended or within the knowledge of the Coroner.”

10.  The judge concluded that the pleading was not sufficient, in that there was no reasonable cause of action pleaded in full.  He considered the possibilities of letting the plaintiff attempt to make further amendments to cure the defect, and treating the action as one brought for an order that an inquest be held into the death of Mrs Wilmes, but found that neither alternative was appropriate, saying:

“ 69. I have considered whether there is any alternative to striking out the ASOC and the action, being either (1)  permitting the attempt at some further amendment so as to cure the defect, or (2)  treating the action as one being brought specifically to apply for an order that the Court of First Instance order and inquest to be held into the death of Mrs Wilmes.

70.  However, in light of the various submissions made, and on application of principle, I do not think either alternative is appropriate to the circumstances.  Leaving aside any possible formulaic use of words, what Mr Wilmes has described does not seem to me to amount to the elements of the tort.  Further, an application under section 20 of the Ordinance is a somewhat different application than a claim in tort.”

The appeal from the Master was accordingly dismissed.[9]

11.  In his subsequent decision of 29 June 2021 on the plaintiff’s application for leave to appeal, the judge did not comment on the merits of the proposed appeal, but simply made no order on the summons, as leave to appeal was not required.

The application in this court

12.  The summons in this court is supported by the plaintiff’s affirmation dated 18 November 2021 which attached 4 pages of documents, consisting of: (i) a page headed “Document A”; (ii)  page 2 (and the first 2 lines and last 7 lines of page 3), being a reproduction of paragraphs 23-25 and 30 of the Judgment; (iii) the middle part of page 3, which is largely a repetition of page 3 of Document B, enumerating a number of documents; and (iv)  page 4 being a page taken from the opinion of the independent medical expert referred to in paragraph 16 of the Judgment.

13.  Document A seeks permission to lodge an appeal out of time, which was necessitated by the plaintiff’s “honest procedural mistake”, and states that the plaintiff appends “a non-exhaustive list of envisaged grounds of appeal”. 

14.  On 7 January 2022 the plaintiff filed his second affirmation herein, exhibiting another page headed “Document B” which responded to the defendant’s affirmation of 28 December 2021.  The plaintiff also exhibited his 1-page skeleton argument for the hearing before the judge on 29 June 2021 and his affirmations filed in the court below dated 22 February 2021 and 24 March 2021 respectively.

15.  In addition, the plaintiff has lodged written submissions dated 21 February 2022 in support of his application and written submissions in reply dated 3 May 2022.  On behalf of the defendant, Mr David Yim has made written submissions to the court dated 11 April 2022.

Discussion

16.  The legal principles applicable to an application for extension of time to appeal are well established.  In Lee Chick Choi v Best Spirits Co Ltd (HCMP 371/2015; 21 May 2015)  at §19, Kwan JA stated:

“ The legal principles regarding an application to extend time for an appeal are well established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success. In other words, he would need to demonstrate a strongly arguable case (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd & Anr [2001] 1 HKC 125 at 127D to 128D, 132F; KNM v HTF, HCMP 288/2011, 7 September 2011, §§2, 19, 20; YN v NA [2014] 5 HKC 49 at §§16, 17).”

17.  In relation to the first period, i.e. from the date of the Judgment (10 March 2021)  to the hearing of the plaintiff’s summons for leave to appeal (29 June 2021), we are prepared to proceed on the basis that the plaintiff’s failure to serve a notice of appeal or seek an extension of time to do so was excusable, in light of his belief, as an unrepresented litigant, that leave to appeal was required and was being sought by his summons filed within time.  Even after the hearing of 29 June 2021, however, the plaintiff did not issue a summons for extension of time until 18 November 2021.  There has been no explanation of the substantial delay during this second period.  It follows, in our view, that to obtain an extension of time, the plaintiff has to demonstrate a real prospect of success in the intended appeal.

18.  We turn to the proposed grounds of appeal put forward by the plaintiff.  As far as we can decipher from the plaintiff’s affirmation and his written submissions, the first ground is connected with section 20 of the Coroners Ordinance.  In Document A, in relation to paragraphs 69 to 70 of the Judgment where the judge discussed the possibility of the defects of the pleading being remedied by treating the action as one brought to seek an order for an inquest, the plaintiff states:

“ Thus at the time of this writing an application in open court according to Section 20 1(a)  in full conformance with the stipulations of the Ordinance is pending in court since the filing date of the ASOC (i.e. 22. June 2020). The non-recognition of this situation described afore in conjunction with using a nondescript and trivial statement to explain it away amounts to an act of ignoring a properly filed application in open court committed by that very same court. The plaintiff could not find any legal provision according to which filing of a claim for misfeasance in public office and a concurrent application according to Section 20 of the Coroners Ordinance are supposedly mutually exclusive.”

19.  It is true that under section 20 of the Coroners Ordinance the Court of First Instance, on the application of a properly interested person, has power to order an inquest to be held.  That section provides:

“20. Power of Court of First Instance to order inquest

(1)  Where the Court of First Instance, upon the application in open court of a properly interested person or the Secretary for Justice, is satisfied—

(a)  that a coroner has failed to hold an inquest which ought to be held;

(b)  where an inquest has been held by a coroner, that by reason of fraud, rejection of evidence, irregularity of proceedings (including a failure to comply with section 14(3)), insufficiency of inquiry, or otherwise, it is necessary or desirable that another inquest should be held; or

(c)  where an inquest has been held by a coroner, that by reason of the discovery of new facts or evidence it is necessary or desirable that another inquest should be held,

  the Court of First Instance may order an inquest to be held into the death of a person and, where an inquest has been already held, may quash the findings of the coroner or jury at that inquest already held.”

20.  However, the plaintiff’s writ had all along been a claim for the “Tort of Misfeasance in public office committed by the Coroner”.  The tort is a civil cause of action alleging wrongdoing, with well-defined ingredients as discussed by the judge, giving rise to the remedy of damages, if established.

21.  Section 20 on the other hand is a provision that confers on the Court of First Instance a discretion to order an inquest where “a coroner has failed to hold an inquest which ought to be held”.  On such an application, which is generally commenced by originating summons, the court considers de novo whether an inquest ought to be held.  There is no requirement that the coroner was at fault in not ordering an inquest, or that he had committed one of the categories of errors for which the court may grant relief on a judicial review: Secretary for Justice v William Ng Esq, a Coroner [2011] 1 HKLRD 283, §§40-41; Imelda Quinto Abong v Coroner [2021] 2 HKLRD 607, §36.

22.  The Judge’s observation that an application under section 20 is “a somewhat different application than a claim in tort” is, if anything, an understatement.  The plaintiff had chosen to make serious allegations against the coroner, which are not necessary for an application under section 20, in support of a claim in tort.  The judge did not consider it appropriate to treat the action as one brought specifically to apply for an order for an inquest to be held.  Given that the action had always been for the tort of misfeasance in public office, this decision was entirely within the judge’s discretion.  The judge, having come to the view that the pleading of the tort of misfeasance in public office was irremediably deficient, was entitled to maintain the Master’s order of striking out and dismissal of the action. 

23.  The second proposed ground of appeal is directed at certain omissions in the Judgment.  Document A states that paragraph 23 of the Judgment, in quoting from Document B, has omitted passages, showing that the judge “avoided to take into account documentary evidence for the fraudulent misrepresentation of the approximate cause of death of Mrs Wilmes having been committed by both Coroner David Ko and Dr K L Wong, the physician bringing the case to the coroner’s attention.” The plaintiff also refers to the fact that the term “aspiration” was avoided in the independent medical expert’s evidence, and states that it shows her attempt to reconcile her findings as to the proximate cause of death with the version already on record.  The plaintiff says these are misrepresentations which have resulted in the provision of false information to the Births and Deaths Registry.

24.  In his written submissions of 21 February 2022, the plaintiff says there was “cognizably deliberate misdescription” in the Judgment of “pivotal facts and events” which, if properly dealt with, would have permitted the finding of the requisite mental element for the tort of misfeasance in public office.

25.  With respect to the plaintiff, his contentions are misconceived.  The judge was not required to quote in his Judgment everything that the plaintiff had said or submitted in writing.  The judge’s task was to assess the adequacy of the plaintiff’s pleading.  As the judge said, there was no pleading of the mental element or of the factual basis forming the requisite mental element on the part of the Coroner, or of the damage or harm caused to the plaintiff.  Document B made numerous comments that the letter from the Coroner’s Court dated 12 May 2020 was variously “inaccurate”, “misleading”, or “unclear”, but, like the judge, we do not see that it could salvage the deficiencies in the plea of misfeasance in public office.  The plaintiff’s allegation that the judge deliberately misdescribed pivotal facts and events is baseless and ought not to have been made.

26.  Naturally we have sympathy for the plaintiff for having lost his wife, and we understand that he vehemently disagreed with the deletion of the word “aspiration” in the cause of death on the death certificate, and that he also disagreed with the Coroner’s decision not to hold an inquest.  If he wishes the court independently to consider the question whether an inquest ought to be held, section 20 of the Coroners Ordinance is the avenue.  But if he chooses to sue the Coroner for the tort of misfeasance in public office, the legal position is that to sustain such a claim, there must be a proper pleading credibly alleging that in essence the Coroner “acted in bad faith and dishonestly abused his powers, knowing that the plaintiff was likely in the ordinary course to suffer injury of the type actually suffered as a result of the [Coroner’s] unlawful conduct”.[10]  As the judge concluded, particularly in §§65-67 of his Judgment, the plaintiff’s pleading did not meet the requirement.  It was correctly struck out.

27.  For the above reasons, we do not see any prospect in the plaintiff’s intended appeal.  Accordingly, the application for extension of time is dismissed.

28.  There is no reason why costs should not follow the event, which is the general rule.  We therefore order the plaintiff to pay the defendant’s costs of the application, which we summarily assess in the sum of $35,000.