RE DR. STEVEN LEE SIU HUNG

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. Shortly after ten in the evening on the 2nd October 1989, a young mother underwent a Ceasarian Section operation. A baby girl was delivered by the applicant, Dr. Lee. The young mother was returned to the ward at 11:30 to recover. Her vital signs were monitored. At about 3:30 a.m., the young mother was found to have gone into shock. No definite cause was diagnosed, but blood was ordered at about 3:45 a.m. Blood cross-matching would have to be undertaken before delivery. Recollection as to the arrival of the ordered blood was not uniform. It finally came and 450 c.c. blood transfusion commenced at 6:30 a.m.

2. Dr. Wong who attended the young mother in shock at the time of emergency was claimed to have excluded haemorrhage. Miss Crebbin, the Coroner’s Officer, disagreed. Transcript of the applicant’s evidence at the inquest of what was said by Dr. Wong was read : “At that time, Dr. Wong said may be somewhere there was haemorrhage.” Dr. Wong who was called in for the emergency had himself relieved at 5:00 a.m. After the commencement of blood transfusion at 6:30 a.m., the applicant left the patient. At 7:00 a.m., there was an appreciable drop in the patient’s blood pressure. At the request of the applicant, Dr. Wong was again consulted in emergency. Dr. Wong diagnosed diabetes mellitus from her blood sugar and prescribed insulin. Shortly after the applicant’s arrival, Dr. Wong departed. Attendance of a consultant physician, Dr. Mak, was arranged. All efforts to resuscitate the patient failed. She was certified dead at 9:15 a .m.

3. Professor Chang stated at the inquest that shock was caused most likely by gram negative septicaemia. The Professor’s process of deduction was beset with difficulties, particularly in the absence of any sign of fever or infection. Professor Chang commented that there was nowhere near enough blood loss to cause shock and that the patient did not starve or sweat enough to cause dehydration. He discounted the hypothesis of hypovolaemia i.e. shock from loss of blood and fluid, though he was unable to rule out other possibilities.

4. Professor Ong was retained by the family of the deceased, including her surviving husband. He was called to testify by the Coronor’s Officer. Professor Ong did not accept Diabetes Mellitus as a cause for the shock. He also ruled out gram negative septicaemia. He was of the opinion that the 300 c.c. of blood and clots in the birth canal found in autopsy would represent 50% more, say 450 c.c. of blood. He attached weight to loss of fluid in an air-conditioned operation theatre. His opinion was that the cause of shock was a combination of dehydration and haemorrhage. It was acknowledged that blood loss in such a combined shock did not always manifest itself externally. Professor Ong’s conclusion was dependent, in the main, on the discovery of the 300 c.c. of blood and clots in the post-mortem examination. The professor noted that no direct evidence had been given of blood loss in such a quantity (i.e. 450 c.c.) by or soon after 3:30 a.m. Professor Ong expressed his views that given “active proper treatment” between 3:30 -4:00 a.m., the critical stage reached at 3:30 a.m. was reversible, that the deceased would have had over 95% chance of survival and that her prospects declined gradually until after 7:02 just before 7:15 a.m. when she succumbed irreversibly to fatality.

5. At 6:30 a.m. blood, so Professor Ong advised, “should have been poured in at a terrific rate, as fast as possible”. Blood transfusion at 6:30 a.m. was given at the rate of 1 unit per 4 hours, i.e. 450 c.c. per 4 hours, approximately 112 c.c. per hour or 2 c.c. per minute. The deceased’s condition had improved before transfusion, and according to the applicant “there was nothing special at the time”.

6. Professor Ong concluded :

"The cause of death is because no proper treatment was given."

Professor Ong had yet to be cross-examined.

7. Professor Ong’s evidence was given after the second ruling of the Coroner. The Coroner made three rulings, all on the application of Mr Graham, counsel for Dr. Lee. The first ruling was made on the 24th May 1990 as given at pages 77 to 79 of the transcript. The second ruling was given on the 5th June 1990. It was immediately followed by the evidence of Professor Ong. It is at pages 7 and 8 of the transcript. The third ruling came after Professor Ong's evidence, on the 8th June 1990 at pages 19 and 20 of the transcript. The first ruling was made in response to Mr Graham's request for a determination as to whether, in principle, the verdict of “lack of care” could at all be returned in medical treatment cases as a verdict free-standing on its own or added to another inquest verdict. The second ruling was sought as to whether Professor Ong was permitted to give evidence on what medical treatment should have been given. By his third ruling, the Coroner ruled that on the Professor’s evidence so far given, including his aforesaid conclusion, viz. “the cause of death is because no proper treatment was given”, the Jury could be left with “lack of care” as a possible verdict.

8. The first ruling seemed to have accepted that the “lack of care” verdict was not available unless there be evidence to suggest some responsibility on the part of the medical staff for causing the deceased’s initial shock. The legal advisers at the inquest understood the ruling as having the effect of restraining them from eliciting information of what medical treatment could or should have been given.

9. By his second ruling, the Coroner allowed Professor Ong to give the evidence as he did. The second ruling is, in fact, confined to that recorded at p.8 of the transcript. What was said by the Coroner at p.7 of the transcript does not appear to form part of his formal ruling; nor did it add anything further to it.

10. It is the general consensus that the Coroner’s third ruling pronounced, in effect, that on Professor Ong's evidence given so far, a “lack of care” verdict could be left to the jury. That does not reflect accurately what was recorded at the end of the third ruling, viz. “I rule that at the conclusion of all the evidence, when I shall be directing the jury as to all the possible verdicts available to them, one of the verdicts will be ‘lack of care’ either or (sic) its own or, as part of another verdict.” (Underlining mine). Cross-examination consistent with this judgment will, no doubt, be conducted on Professor Ong by Mr Graham at the resumption of the inquest. Other evidence will be called including that from an additional doctor. I proceed with this application for judicial review on the common premise that the effect of the third ruling of the Coroner is as understood by counsel.

11. The applicant, Dr Lee, complains of the second and the third rulings of the Coroner. He does not agree with everything that was or was purportedly decided in the first ruling. Mr Graham clarified in these terms :

“The first ruling was wrong but we could live with it and the inquest could have proceeded happily on that ruling.”

 

12. The rulings of the Coroner leaned heavily on the judgment of Barnett J. in the case of Shirley Ann Boyde MP 1950 of 1989, delivered on the 15th February 1990. All the parties before me are dissatisfied with the judgment of Barnett J. from which an appeal and cross appeal have been lodged. In his third ruling, the Coroner endeavoured to explain the rationale of his first ruling. Mr Whaley for the Coroner conceded that the basis for the second and the third rulings was a departure from that of the first. It is all too easy to be critical after the event. In fairness, it cannot be said that it was not at all open to the Coroner, having made a third ruling and after much evidence, arguments and a lapse of over a fortnight, to distil his mental process in the first ruling in the way he did. Such rationalisation in his third ruling cannot be peremptorily dismissed. This is a matter not before me and I need express no concluded view on it. Therefore, the real complaint of the applicant focuses on the basis of rulings two and three.

13. Much criticism was sought to be levelled at the judgment of Barnett J. by both Mr Graham and Mr Whaley who were also counsel in the Shirley Ann Boyde case. They have appealed and cross-appealed from that judgment. Mr Whaley described the judgment as an extraordinary decision and recalled that the Coroner had to “struggle” with it. This Court was only given the barest of outline in a critical examination of the 42-page judgment, but dissatisfaction was evidently wide-spread. The grounds of the appeal and the cross appeal were not disclosed. Reliance on that judgment has given rise to this application for judicial review. Interest of justice will be best served if I may be forgiven for having matters examined afresh.

14. The other procedural matter is the affidavit of the Coroner’s Officer, Miss Crebbin, which was admitted de bene esse. The offending passages, introduced with the best of intention, have now been expunged. The same is therefore received without objection. In effect, the respondent no longer relies on what Professor Chang would have said if he had been invited to elaborate on medical treatment or what a proposed witness, Dr. Cockram, is expected to say.

15. The grounds in support of the application were specified in writing and submitted by Mr Graham as “Particulars of Grounds” which are to be read together with paragraph 5 of the Statement. Insofar as these grounds are or may lie outside the Statement, I grant leave to the applicant.

16. Paragragh 5 of the Statement reads as follows :-

“Professor G.B. Ong gave evidence that the cause of death was haemorrhagic shock because no proper treatment was given, and that if the deceased had been given adequate treatment at 3:30 a.m. chances of her survival were 95%. (sic).” [it should be 95% plus at p.18 of the transcript (p.386 of the Coroner’s notes)].

17. The amended “PARTICULARS OF GROUNDS” are set out below :

“The Coroner’s 3 rulings (but in particular rulings 2 and 3) and his allowing the evidence of Professor G.B. Ong summarised in 5 above to be given and to stand as evidence were :

 

“(1)	wrong in law and as a matter of fact as contrary to inter alia, the decision of Barnett J. in M.P. No.1950 of 1989, R. v. Surrey Coroner, ex-parte Campbell [1982] 1 QB 661, R. v. Huntbach, ex-parte Lockley [1944] 1 KB 606, R. v. Portsmouth Coroner, ex-parte Anderson [1988] 2 All ER 604, R v. South London Coroner ex-parte Thompson [1982] Times Law Report 372 and R. v. Southwork Coroner, ex-parte Hicks [1987] 2 All ER 140;
“(2)	in excess of the jurisdiction conferred by S.6 (1) of Coroner’s (sic) Ordinance and in breach of the practice prescribed by rule 23 Of the Coroner’s (sic) Rules;
“(3)	a verdict of ‘lack of care’ delivered in consequence of the Coroner’s ruling 3 would be unlawful as having been reached in breach of the rules of natural justice (rule 28) [Amended on 18th July 1990].

18. Shortly stated, this motion is moved on the grounds (1) that the Coroner had no jurisdiction to leave to his Jury a possible “lack of care” verdict, both in terms of a free-standing verdict or as an addition to another possible verdict, (2) that he was wrong in law in accepting Professor Ong’s conclusion as sufficient evidence for la prima facie case of “lack of care”, (3) that in the statutory framework, the third ruling of the Coroner in leaving “lack of care” as a possible verdict to the Jury is susceptible of judicial review by reason of the inhibition imposed by r.28 of the Coroners Rules against Dr. Lee or his representative addressing the Coroner or the Jury as to facts.

19. Where a coroner acts without jurisdiction, his decision is a nullity. The word “jurisdiction” may be used in a very broad sense. In this case, the applicant seemed to labour primarily on the above (1) and (2) for his “jurisdiction” objection, namely the Coroner wrongly introduced “lack of care”, in any form, to this inquest and wrongly acted on Dr. Ong’s evidence alleged to be as well unfounded as incredible. As for (1), Mr Graham, counsel for the applicant, if I understood him correctly, took it in three strides, viz. firstly the “lack of care” verdict did not avail, in any form, to an inquiry into hospital deaths; further it was decidedly not available to medical treatment cases; and lastly in any event improper medical treatment causing death, in order to bring in such a verdict, must relate exclusively to the treatment of the initial cause of death. It was further submitted that the Coroner’s third ruling would necessarily lead to the applicant being deprived by r.28 of one of the rules of natural justice, audi alteram partem, that is to say the applicant would not be fully heard on a charge of negligence against him.

20. "Adequacy of treatment" was not questioned because of the first ruling. Prospects of survival at 3:30 and what could or should have been done to enhance them were not canvassed.

21. The applicant seeks an order of certiorari to quash rulings two and three of the Coroner or alternatively a declaration that the Coroner exceeded his jurisdiction and was wrong in law in making these rulings.

22. I shall deal first with the second limb of the jurisdictional complaint, i.e. whether the evidence of Professor Ong is sufficient in law for a possible “lack of care” verdict to be left to the Jury. The weight of the evidence is a matter exclusively for the Jury. It was submitted that Professor Ong’s conclusion was based crucially on a hypothesis derived from a reconstruction linked to the possibility of 450 c.c. blood already in the birth canal at or about 3:30 a.m. Mr Graham took great pains in stressing that there was no actual evidence given of such a loss occurring at that early stage. In the face of conflicting opinions, Professor Ong’s evidence was said to be unsafe to go to the Jury, particularly in an emergency such as this. Counsel seemed to regard Professor Ong’s conclusion as “only the slimmest evidence” ”given with hindsight” as in the case of R. v. HM Coroner for the County of London (Walthamstow Coroner), ex parte Rubenstein Times Law Report, 24th February 1982; [1982] Crim. L.R. 509. It was submitted that Professor Ong, in fact, made an unwarranted assumption without proper foundation, hence the Coroner in adopting Professor Ong’s conclusion would himself be equally guilty of presuming a state of affair which was less than well founded. See R. v. Huntbach, ex parte Lockley [1944] 1 K.B. 606.

23. An expert witness may assist the court “by saying what he would have done in the particular circumstances and/or what he believed other medical practitioner would have done.” See paragraph 6.39 at p.310 Professional Negligence by Jackson and Powell. Indeed, having sat through the proceedings up to the time of his evidence, Professor Ong was perfectly entitled to say “assuming the facts proved to be true, (whether he considered) there was anything improper in the treatment described .... or whether the result produced could, in (his) opinion, have been avoided by proper care.” See paragraph 27-52 at p.587, Phipson on Evidence 13th edn. In drawing a parallel with the functions of a medical expert in the context of negligence, care must be taken in not confusing “lack of care” with negligence, though the ground facts of both of which are, more often than not, overlapping. That is precisely what Professor Ong as an expert witness did. His conclusion, based on the evidence that he had sat through, cannot be said to be lacking in foundation or credibility. It can certainly not be rejected outright as insufficient to establish prima facie evidence of “lack of care” for the Jury.

24. Indeed, Professor Ong had not yet been cross-examined before the applicant chose to apply for judicial review. It is hardly a proper consideration but one would be curious to know the reason why counsel should have decided to spare what was claimed to be the highly unsatisfactory evidence of the good Professor from sure destruction by cross-examination.

25. After all, an inquest is not a trial. See paragraph 15.19, p.176 Jervis 10th edn. Rule 12 of our Coroners Rules permits questioning of witnesses at an inquiry, but that must be for the purpose of assisting the Jury in matters which the inquest is directed to determine. It is not intended to widen a coroner’s inquest into adversarial fields of conflicts, see R. v. Hammersmith Coroner, ex parte Peach [1980] Q.B. 211 at p.220. Caution must be exercised to prevent the inquisitorial nature of the inquest from becoming oppressive. See paragraph 15.20 at p.176, Jervis 10th edn. An inquest is solely to determine “the cause of and circumstances connected with the death”, including “how the deceased came by his death”. It is not an inquiry for the purposes of determining civil or criminal liability. Indeed, r.30 of the Coroners Rules provides that “no verdict shall be framed in such a way as to appear to determine any question of civil liability”. Parties should desist from asking question to discredit a witness merely for establishing that he was at fault. See In re Death of Nancy Ruth Hendrie, deceased (New Zealand), CP445/87, p.11. The first supplement (1988) to Jervis on Coroners, 10th edn. (1986) adds to paragraph 15-19 the following :

“Although an inquest is not a trial, a coroner must be careful not unduly to restrict the questions which interested parties may ask of witnesses; thus for example, a legal representative is entitled to test opinion given in evidence, and to suggest that a witness is wrong : re Adam Bithell (1986) 150 J.P. 273.”

 

26. Professor Chang’s evidence was deliberately guarded and his given view was blinkered. He was forewarned that his right as a witness was so to be curtailed. All concerned felt constrained to confine within a set compass. Regardless of what Professor Chang would have freely said, it cannot be entirely ruled out as a possibility that the substantial areas of conflict in the experts’ evidence may very well be more apparent than real. At least, in the subjugated environment, these apparent divergences can have but a less eroding effect. The Coroner may even wish to recall Professor Chang. Dr. Cockram will come forward to testify. When medical evidence is incomplete, it would be all the more difficult to condemn Professor Ong’s hypothesis as wholly unsound. The applicant’s challenge to Professor Ong’s evidence on the ground of insufficiency as a matter of law fails.

27. I return then to counsel’s threshold contention in the first limb of his jurisdictional complaint, i.e. whether “lack of care” could be returned as a free-standing verdict on its own or as an addition to another possible verdict in an inquery into a hospital death.

28. The unhelpful distinction drawn between the terminal cause of death and the real cause of death following from a definable event as given under the rubric “Cause of death” at p.83 of the 9th edition (1957) of Jervis on Coroners has now been superceded, some 30 years later, in the 10th edition (1986). The 10th edition provides us with a realistic dichtomy of Natural Death and Unnatural Death. See para. 10.8 at p.112 and Cap. 11 of Jervis, 10th edn; para. 13.17 at p.84 Thurston’s Coronership, 3rd edn. A coroner is enjoined to inquire into “deaths from violent and unnatural causes and sudden death of unknown cause” as opposed to natural causes. P.118 of Thurston’s on Coronership (1976) is now over-taken by paragraphs 21-10, 21-11 and 21-12 at pages 142, 143 and 144 and Chapter 13 of the 3rd edition of Thurston’s Coronership (1985), “The Law & Practice on Coroners.” Despite the contrary guidance offered in the Schedule to the English Coroners Rules 1984 and the view expressed by the Home Office, the courts in England have continually held that the “lack of care” verdict is one which a jury could return in isolation. Jervis, 10th edition shares the same view. See paragraphs 16.20 and 16.21 at pages 196 and 197. R. v. Surrey Coroner, ex parte Campbell [1982] Q.B. 661 per Watkins L.J. at p.676; [1982] 2 W.L.R. 626 at pp.637 and 638 and R. v. HM Coroner for the County of London (Walthamstow Coroner), ex parte Rubenstein, supra. are given as reference sources.

29. Thurston’s Coronership 3rd edn (1985) has suggested in para.21.12 that an observation of Glidewell J. in Rubenstein, as he then was, could be understood as “saying that …….. (a verdict of lack of care) should not in any event have been left within the jury’s power to return”. In other words, a “lack of care” verdict was not available on its own “in any event”. The passage in Glidewell, J’s judgment relied upon by the authors in the 3rd edn. of Thurston does not appear, in its proper context, to justify their comment. The words “in any event” are not in the judgment. In Rubenstein, a police surgeon put the deceased who was thought to be drunk in a detention cell. Six hours later, the deceased’s condition worsened and was transferred to hospital where he was found to be suffering from a subarachnoid haemorrhage. The deceased died from yet another haemorrhage in hospital. There was no evidence at all that “what happened between the arrival at the police station and the arrival at the hospital in any way caused (his) death”. Therefore, there was no evidence of causation and “the coroner should not have left (the verdict of ‘aggravated by neglect’ to the jury)”, and in the absence of evidence of causation, “the jury were not entitled to bring in a verdict of ‘aggravated by neglect’”. Evidence reconstructed after the event against the police surgeon was most tenuous and unsafe to rely upon, and it was held that “the jury should not have been left to add a rider aggravated by neglect” to a verdict of death by natural causes. (Emphasis added). To sum up : since the cause of death was unknown, no independent verdict of “aggravated by neglect” was possible, and since there was no acceptable evidence against the police surgeon, no rider could be added to the verdict of death by natural causes. It was no part of the judgment that the “lack of care” verdict “should not in any event have been left within the jury’s power to return”. (Underlining mine) The editors of Thurston seem to be in error. Their view is also not supported by Jervis, 10th edn.

30. The 1st supplement (1988) to the 10th edn. of Jervis, adds to paragraph 16-20 the case of R. v. Southwark Coroner, ex part Hicks [1987] 1 W.L.R. 1624; [1987] 2 All ER 140. At p.1634F or 147f, Croom-Johnson L.J. held “lack of care” as capable of being a free-standing verdict on its own.

31. In paragraph 21-11 of Thurston 3rd edn. and footnote 48 to paragrpah 16.20 of Jervis 10th edn., instances are given, in which “lack of care” was added to other possible verdicts than a verdict relating to medical causes. The inclusion of “aggravated by lack of care” as an addition to another verdict relating to medical causes has never been doubted. Counsel’s submission in this direction is wholly insupportable.

32. In conclusion, “lack of care.” could be a free-standing verdict as well as an addition to another verdict, at least to one relating to medical causes. The opening contention in the first limb of Mr Graham’s argument on jurisdiction, therefore, also fails.

33. Great play was made of phrases in R. v. Southwark Coroner, ex parte Hicks, supra. such as a “lack of care” verdict solely reserved for the withholding of “physical attention” to the patient, “appropriate only to the physical condition of the deceased as causing death”, and akin to self-neglect, “the other side of the coin to self-neglect”, “a lack of sustenance and physical looking-after of the deceased in one form or another”. See [1987] 2 All E.R. 140 p.144 h-j, p.146 h, p.146 h/j and p.145 f/g. Hence, pursuing his further subsidiary argument, Mr Graham submitted that the “lack of care” verdict was by its very nature confined to inadequate physical attention and would not be appropriate for insufficient medical treatment, when applied with full attentiveness. That would seem to be a vain but bold attempt to introduce inadequate attention by a doctor to a setting in which only his alleged shortfall in medical treatment was directed to be inquired into. The inquest was solely concerned with “lack of care” and not mere want of attention. Inadequate attention by itself was irrelevant.

34. Could “lack of care” apply to medical treatment? In Hicks case, Croom- Johnson L.J. included bad medical care as falling within the prime meaning of the word “care”. See p.144 h-j. or is it confined, as Mr Graham suggested, to physical attention in the strict sense of that term? At p.147 h-j Croom-Johnson L.J. acknowledged “that if there had been evidence of insufficient medical treatment, a verdict of ‘lack of care’ might have been possible”. Mere want of attention unassociated with any act to prevent death would not be a matter relevant to an inquest, though inadequate attention could amount to lack of care. Croom-Johnson L.J. spoke of “insufficient medical treatment” and not the amount of attention paid to a patient. That was a case in 1987. Earlier in 1982, Rubenstein was a case in which the failure of the police surgeon to diagnose subarachnoid haemorrhage was regarded as a circumstance for proper consideration in an inquiry into alleged neglect. In para. 13.17 at p.84 Thurston 3rd edn. (1985), the authors are of the opinion : where “a person dies in the course of medical or surgical treatment …… the Coroner’s jurisdiction arises in the following cases ….. (ii) if an allegation of negligence is made, although the Coronor’s court is not the forum for a complainant to air his grievance and there should usually be some otherwise evidence which gives the coroner reason to suspect that there has been a failure of care/negligence”. Glidewell L.J., as he now is, also cautioned in Rubenstein, supra. that : “before (such) a verdict ….. could properly be left to the jury or returned by them, there must be some evidence of neglect.”

35. Moreover, it is inconceivable that proper medical treatment or the lack of it can be said to fall outside the ambit of s.6(1) of the Coroners Ordinance and r.23(b) of the Coroners Rules. Under s.6(1), a coroner is enjoined to enquire into “the cause of and the circumstances connected with the death”. He “may determine the cause of death”. By r.23(b), the proceedings and evidence at an inquest are to be directed solely to ascertaining, inter alia, “how, when and where the deceased came by his death”. In Halsbury’s Laws of England, the 4th edn., paragraph 1110, note 1, “circumstances connected with the death” is taken as meaning circumstances surrounding the death.

36. Mr Justice Hardie Boys in New Zealand in the case of CP445 of 1987 re The death of Nancy Ruth Hendrie, deceased said at pages 6, 7 & 11 of his judgment :

“What is sought here is a declaration that no evidence may be given by and no questions put to any witness that may in any way tend to show that Dr. Louw was at fault, whether in terms of the criminal law or the civil law or in terms of proper and acceptable standards of medical practice.”   “The issue as to jurisdiction turns on the word 'how' - 'how the death occurred'. That is what the Coroner has to establish (s12) and the evidence he hears must be limited to that and the other matters in s12 (s17(4)). ‘How’ means ‘in what way or manner’, ’by what means’ (Shorter Oxford English Dictionary). Even considered in the light of the expression ‘the manner of death’ in s.4(1), the word is wide.”   “Nonetheless, for an inquest to have a useful social function, it must, I think be able to go beyond the mere medical cause of death. I agree with the comment in Halsbury’s Laws of England, 4th edn. Vol. 9, paragraph 1110, note 1, that the Coroner must also investigate ‘the circumstances surrounding the death’. This must necessarily involve in this case, not only determination of the procedures that were employed, but also determination as to whether the correct procedures were employed.”

 

37. Indeed, r.23(b) of our Coroners Rules contains a phrase “how the deceased came by his death” similar to the New Zealand’s “how the death occurred”. Our “how the deceased came by his death” seems to be even slightly more embracing. It would be difficult to imagine that, given the appropriate circumstances, what was or would have been proper medical treatment could be legitimately excluded, in our comparable legislation, from a coroner’s inquiry.

38. In the matter of the Coroners Acts 1887-1926 and In the matter of an Inquest into the death of Adam Bithell, deceased, (1986) 150 J.P. 273, at p.278, shoulder reference v-vi, McCullough, J. had this to say of the phrase “how the deceased came by his death” :

“Thus one sees that the phrase 'how the deceased came by his death' in s.3 of the 1887 Act has in practice come to mean finding a number of things, if this is possible on the evidence . .... in a case where the jury are of the view that the death was from misadventure they are to find, if they can :

 

(a)        the injury causing death;

(b)        the circumstances in which injury was sustained (Emphasis mine);

(c)    a conclusion as to death.”

 

39. To Croom-Johnson L.J. public interest would itself warrant an investigation into medical care said to be wanting. The “worries or suspicions” felt by a deceased’s family, “justified or wholly unjustified”, “should be examined sympathetically” in the public interest so long as they go to a verdict returnable by a jury. See R. v. Southwark Coroner, ex parte Hicks, supra. p.144 c/d.

40. In paragraph 15.19 at p.176 of Jervis 10th edn., the following passage appears :

“How the deceased came by his death is, of course, wider than merely finding the medical cause of death, and it is therefore right and proper that the coroner should enquire into acts and omissions which are directly responsible for the death.”

 

41. Clearly, lack of medical care was a proper, circumstance for the Coroner and the Jury at this inquest.

42. Moreover, the investigatory powers of a Hong Kong coroner seem to be more extensive than those of his counterpart in the United Kingdom. Our r.23(c) of the Coroners Rules requires the proceedings and evidence at an inquest to be directed to ascertaining “the persons, if any, to be charged with murder, manslaughter, infanticide or causing death by dangerous driving, or of being accessories before the fact should the jury find that the deceased came by his death by murder, manslaughter, infanticide or dangerous driving.” In England, this statutory duty was abolished by the Criminal Law Act 1977, ss.56 & 65. See para. 1.9 at p.7, para. 15.23 and 15.24 at p.177 of Jervis 10th edn. Further, rule 24(2) of the Coroners Rules enpowers the Coroner or the Jury to “make a recommendation designed to prevent the recurrence of fatalities similar to that in respect of which the enquiry is being held”. In England, recommendations and riders have, since 1980, no longer been proper. See the Coroners (Amendment) Rules 1980 r.11; para. 16.24 at p.198 of Jervis 10th edn. R. v. Shrewsbury Coroners Court, ex parte British Parachute Association reported in the Times, 21st September 1987, finally lay to rest the post-1980 continued irregular practice to add riders or make recommendations.

43. In conclusion, “lack of care” may be established by absence of proper medical care or treatment which would have prevented the death of a deceased. The cause of the death is a matter which a coroner has to determine. In this case, the cause of death allegedly involved insufficient medical treatment. That is the opinion expressed by Professor Ong with the explanations he offered in his evidence. The Coroner was not wrong in either admitting Professor Ong’s given evidence or ruling as he then did, at the insistence of the applicant, on its effect.

44. In addition, counsel relied on a passage at p.610 e/f read in conjunction with those at p.605 j and p.609 d/e in R. v. Portsmouth Coroner, ex parte Anderson [1988] 2 All ER 604 for his remaining subsidiary proposition that “lack of care”, whatever it connotes, must be associated with the initial cause of death. The reference made in holding (2) in the headnote of Anderson to “medical help .....did not affect the initial cause of death” was also sought to be made capital of. In this case, the deceased’s shock or the cause bringing about her shock was the initial cause of death. But what the Professor was critical of was the alleged improper medical care or absence of proper medical treatment in the events that followed after the deceased had gone into shock. Thereupon counsel contended that the Coroner was wrong in law and outside his jurisdiction in making the second and the third rulings on admission of Professor Ong’s evidence and its effect. There was no suggestion that the shock or its cause was generated, wholly or in part, by any lack of care. Against this background, only Professor Ong’s analysis of Dr. Lee’s performance after the shock was called in question. It was criticised as gratuitous and immaterial.

45. I have set out the displacement of the former elusive categorization of terminal and real/initial causes of death by the more elucidating contrast between Natural Death and Unnatural Death. “Care” in terms of medical treatment generally begins with an ailing condition. Initial or real cause of death is an opaque concept. The initial ailment and the stages that follow may all be plagued by lack of care resulting in death. A suggested probe into deaths associated with surgery by the editors of Jervis is an example of “lack of care” at the inception of medical treatment : “Was there any evidence of accidental error or negligent technique in the surgical or anaesthetic procedure?” para.6.29, p.55 Jervis 10th edn. Even the surgery may not be the very first cause of death, and the “initial” cause of death may not be the “real” cause of death. The old concept asks more questions than providing answers. It is always the suspected cause of death under investigation, which is the pivotal point. Each case must be judged on its own facts for the suspected cause of death which calls for an inquiry. I shall consider later the “initial cause of death” in holding (2) of Anderson. In this motion, we are concerned with what remedial measures could have been taken to prevent the death of the deceased after her shock. The “initial” cause of the shock was not and no other cause was under investigation. At the centre of this inquiry was that the medical treatment which should have been given for shock to prevent death was not given. It is absurd to attempt to bring in the shock itself or its cause which was not an issue, particularly on account of passages quoted out of context.

46. Anderson, supra. followed R. v. Surrey Coroner, ex parte Campbell, [1982] 2 All ER 345; [1982] Q.B. 661 in holding that in appropriate circumstances, it would be open to a jury to return a “lack of care” verdict. As to what are or are not appropriate circumstances for the return of such a verdict, Anderson echoed the principles in Hicks. See p.609e, per Mann J. Therefore, in no way did Anderson seek to part company with Hicks. The conclusion in Anderson should be read against the scenario that there was no evidence of there being any real opportunity of doing something effective to prevent Anderson’s death as there was in Hicks. The ratio in Anderson can best be appreciated if one would constantly bear in mind the meaning of the word “care”. “The prime meaning is that of physical attention, preventing death from starvation, exposure, or bad nursing or medical care.” See R. v. Southwark Coroner, ex parte Hicks, supra. p.144 h/j. “Lack of care” would not necessarily involve “a culpable breach by someone of a legal or moral duty to take care of the deceased”. It does not depend on the common law duty of care. See Hicks supra. pp 146j - 147a and p.149 f/g. It merely presupposes that some one “had at least the opportunity of rendering care which would have prevented the death …. a real opportunity of doing something effective”. Hicks, supra p.147b. In principle, lack of care is withholding of care or proper care to an ailing or deteriorating condition. The relationship with the person from whom care is expected need not depend on his moral or legal duty to provide such care. It would suffice if an opportunity existed for such care to be rendered. Thus, from Hicks we know what “lack of care” is for an inquest and from whom it should come.

47. In Hicks, Croom-Johnson L.J. referred to a drowned boy of 6 in a Serpentine children swimming party in London Hyde Park. The excursion was not properly supervised. The verdict returned in the inquisition was “an accident aggravated by lack of care” Croom-Johnson L.J. criticised that verdict as illogical because “lack of care in supervising the bathing party (might) have been the cause of the accident, but it did not aggravate anything at all.”

48. The case of Anderson focused on the unavailability of some rehydration equipment in a case of hyperpyrexia, when Sapper Anderson suffered a heat-stroke in training exercise. Mann J. was drawn to Croom-Johnson L.J.’s example of the drowning boy in the Serpentine. The lack of care in supervising the children party might have caused the death, but it was obviously not associated with any care which could have properly been given to the physical condition to prevent it from causing the boy’s death. The dividing line is drawn between supervision of the bathing party and physical attention given to the boy’s condition after discovery of his body. Lack of care in providing supervision to the children’s activities must be wholly different from any withholding of care that could do “something effective” to the physical condition of the boy after the accident. This distinction was applied by Mann, J. to the facts of the Anderson case. Whether or not the equipment could have been installed within reach was a matter of good or poor administrative supervision unrelated to any physical attention which might have been given to Anderson after his collapse. Failure in ensuring that the rehydration equipment would be available at any given place where it would be needed was a failure in such supervision and was not lack of care in not treating Anderson properly. Although the presence of the equipment could have saved his life, it was merely an administrative failure in properly supervising the placing of a rehydration machine at that spot or properly supervising Anderson’s training exercise, but that was not lack of care in any inadequate treatment for Anderson after his heat-stroke. In that sense, the absence of the equipment could not have aggravated anything at all. This accounts for the observations of Mann J. at p.610 e - f : “The absence of the rehydration equipment did not aggravate (the cause of death)”. “The presence of the equipment might have ameliorated the condition which in fact led to death”, but whether or not the equipment could or could not have been so installed was a question of administrative supervision and not lack of medical care to do something effectively to Anderson’s condition to prevent his death. That is also what Croom-Johnson L.J. meant by “lack of care” being “appropriate only to the physical condition of the deceased as causing the death”. See R. v. Southwark Coroner, ex.parte Hicks, supra. p.146h. In Anderson case, the Headnote is misleading, but the words “affect” and “initial cause” were not inappropriate at a time when the elusive term of real or initial cause of death was in use. Anderson in fact cited with approval the principles enunciated in Hicks. So read, Anderson is not a difficult decision to understand, and it is no authority for Mr Graham’s proposition that at an inquest all converges at the first, initial cause of death.

49. Actus Novus Interveniens was debated but it would seem that it had no role, if any, to play. It was not suggested that there was any prior negligent act causing the shock. The question of a new cause disturbing the sequence of events and breaking the chain of causation did not arise. “Lack of care” and negligence do not necessarily share a common denominator, but the question as to whether the doctrine of actus novus interveniens could become operative will have to be left to future deliberation. Knightly v. Johns [1982]1 W.L.R. 349 has therefore no relevance, save for a reminder to coroners that regard must be paid to the pressures and the gravity of any emergency. See p.336h. In Hicks, Croom-Johnson L.J. sounded a similar warning note : a “lack of care” verdict “shall not be used as a means of levelling disguised criticism at people who do not act in an emergency or take a wrong or inadequate decision.” R. v. Southwark Coroner, ex parte Hicks, supra. p.147 b/c.

50. Acts or omissions caused wholly or in part by pressures in an emergency is a jury question after cross-examination of Dr. Ong and whatever further medical evidence to come. It is worthy of note that at this juncture, Professor Ong has not qualified his conclusion with reference to any mal-adjustments in an emergency.

51. Mr Whaley never maintained that examination of “lack of care” at an inquest must necessarily involve an enquiry into negligence. In the circumstances, such as those in this case, counsel stated no more than the obvious that these two questions could at times overlap. “It is”, so submitted Mr Whaley, “a fact finding inquiry which may have covered the same factual terrain, a trial for civil liability would cover”.

52. Rule 30 of our Coroners Rules requires a verdict not to be framed in such a way as to appear to determine any question of civil liability. That rule has been regarded as having been complied with by not naming any person involved in causing or aggravating the death by lack of medical care. See Hicks case, p.146 d/e; R. v. Surrey Coroner, ex parte Campbell [1982] 1 Q.B. 661, p.667 A - B; R. v. H M Coroner for the Country of London (Walthamstow Coroner), ex parte Rubenstein, [1982] Crim. L.R. 509 at p.510; In re the Death of Nancy Ruth Hendrie, supra. p.11 per Hardie Boys J. in New Zealand; p.179 Jervis 9th edn. cited with approved in Campbell, and para. 16.21 at p.197 Jervis 10th edn. A verdict without any reference to the cause of death being brought about or aggravated by the lack of care of any particular person would not transgress r.30 of the Coroners Rules. The matter is virtually unarguable, and Mr Graham abandoned this complaint in his final address.

53. I turn finally to the complaint in relation to r.28 of the Coroners Rules. Rule 28 disallows any address on facts. That, so Mr Graham maintained, would in a verdict of “lack of care” returned by the Jury in consequence of the Coroner’s Ruling 3, constitute a denial of one of the rules of natural justice to the applicant. Hence, it was said to be unlawful. Counsel seemed to suggest that the alleged unfair procedure laid down by r.28 inferentially reflected the legislative intent to exclude the question of “lack of care”. I find no substance in this contention. The inquest is not a trial. Indeed, in R. v. South London Coroners, ex parte Thompson (1982) The Times L.R. 9th July 1982, Lord Chief Justice Lane said in the Divisional Court “that an inquest was a fact-finding tribunal and not a method of apportioning blame and that the procedures suitable for one function were not suitable for the other”. The procedure for an inquest was intended by the Legislature to be entirely different. It is not suitable for an adjudication on civil or criminal liabilities. A coroner is to determine the cause of death. It is a fact-finding tribunal on a limited brief. At every stage, the rules are designed to confine parties at an inquest to questions only relevant to this function of the coroner. It is for him to decide what witnesses to call. The “lack of care” verdict may have far-reaching repercussions, but no civil liability is intended to be or can be decided. There is no charge of negligence preferred against Dr Lee in this inquest. In fact, the verdict must be framed in such a way as to avoid the appearance of a determination of any question of civil liability. Neither a coroner nor his jury may freely express any opinion not provided for by the rules. Nothing in this inquest will be decided against the liability of Dr. Lee whose reputation or other rights are liable to be affected, but an incursion on those rights has to be, in the public interest, tolerated at an inquest. The inquest has its own code. In a special inquiry of this nature, provided the rules are followed in letter and spirit, rules of natural justice need not be fully observed.

54. In the result, the application for judicial review by Dr. Lee must be dismissed and I make an order nisi for costs in favour of the respondent.