SONY RAI v. MR. WILLIAM NG, ESQ., THE CORONER OF HONG KONG AND OTHERS

HCAL 85/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 85 OF 2010

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BETWEEN

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J U D G M E N T

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I. INTRODUCTION

1.  Rai is the widow of Limbu Dil Bahadur.  She seeks to quash a verdict of lawful killing given by the jury at the end of a coroner’s inquest into Limbu’s death.

2.  Limbu was a Hong Kong permanent resident.  Limbu married Rai in Nepal on 22 May 2003.  At the time Rai was resident in Nepal.  A daughter was born to the couple in January 2004. 

3.  In late 2003 Limbu returned to Hong Kong to earn money.  He intermittently remitted funds to Nepal for the upkeep of his wife and daughter.  But over the next 6 years contact between Limbu and Rai became increasingly irregular.

4.  By 2009 Limbu was living homeless on the hillside beside Lok Man San Chuen in Ho Man Tin.  On 17 March 2009 Police Constable Hui, responding to a Lok Man San Chuen resident’s complaint that “a dark-skinned man” was causing nuisance, went to the hillside to investigate.  Hui found Limbu there.

5.  At the inquest Hui gave evidence that, in the course of his encounter with Limbu, the latter attacked him, first punching him in the face and then chasing him with a wooden chair as a weapon.  Hui said that Limbu later broke the chair and threatened to beat Hui with parts of the chair.

6.  Hui stated at the inquest that he tried to take control of the situation by using his police baton and by spraying Limbu with pepper foam.  According to Hui, those attempts failed to pacify Limbu.  Instead, Limbu continued to chase Hui until Hui fell into a gutter.  As Hui could not immediately move out of the gutter, he had to defend himself against the chair parts being brandished by Limbu.  Hui then fired 2 shots from his revolver.  One shot hit Limbu on the left side of the head, passed through the left ear and resulted in Limbu’s death.

7.  Hui contended at the inquest that he had shot Limbu in self-defence.

8.  The Coroner conducted the inquest before 5 jurors.  The inquest was lengthy, running for 76 days between 7 September 2009 and 25 May 2010.  The inquest had itself been preceded by 3 pre-inquest reviews in August and September 2009. There were 3 properly interested persons (PIPs): Rai (who came to live here with her daughter in April 2009 after Limbu’s death), the Police Commissioner and Hui. 

9.  There were 59 witnesses at the inquest.  Most gave live evidence and were examined by the Coroner and counsel for the PIPs.  In addition there were 133 exhibits before the jury.  Those exhibits comprised documents, photos, objects, models, videos and recordings.

10.  On Day 20 of the inquest, the Coroner made a referral to the Secretary of Justice under Coroners Ordinance (Cap.504) (CO) s.35.  This was done because at the time it appeared to the Coroner that a criminal offence (murder or manslaughter) may have been committed by Hui.  Pending the outcome of the reference, the inquest stood adjourned for nearly 3 months.

11.  In the end, following deliberation, the jury returned a verdict of “lawful killing”.  The jury made no recommendations.

12.  By this judicial review, Mr. Phil Dykes SC (appearing on Rai’s behalf) argues that the Coroner took too narrow a view of the inquest’s purpose.  This (Mr. Dykes says) resulted in the Coroner wrongly:-

(1)   refusing to order the Commissioner to disclose documents or parts of documents in respect of which the Commissioner had claimed public interest immunity;

(2)   refusing to require the jury to make a narrative (as opposed to short form) verdict; and,

(3)   refusing to exclude evidence of Limbu’s previous convictions for violent offences from the jury.

13.  Mr. Dykes also suggested in the course of submission that the Coroner misdirected the jury in a number of ways.  Finally, Mr. Dykes contended that the inquest was vitiated by apparent bias on the Coroner’s part.

14.  In addition to opposing Mr. Dykes’ arguments, Mr. Simon Westbrook SC (appearing for the other PIPs) took the preliminary point that this judicial review should be dismissed on the basis that Rai had failed to exhaust all available remedies.  Mr. Westbrook submitted that, instead of bringing a judicial review, Rai ought to have applied to the Court to have the jury’s findings quashed pursuant to CO s.20(1)(b).

15.  At the start of the proceedings, I told counsel that, whatever my conclusion on the effect of s.20(1)(b), it was my intention also to deal with the substance of the judicial review, especially in light of the time and preparation that had already been spent in bringing the application to the Court.  Accordingly, I shall deal with Mr. Westbrook’s s.20(1)(b) point at the end of my discussion of the parties’ substantive contentions in the judicial review. 

II.   DISCUSSION

A.   Purpose of inquest

A.1   Law

16.  Basic Law (BL) Art.28 guarantees a “right to life” by providing that “arbitrary or unlawful deprivation of the life of any resident shall be prohibited”.  Hong Kong Bill of Rights (HKBOR) Art.2(1) affirms the right to life by declaring that “Every human being has the inherent right to life” and “No one shall be arbitrarily deprived of his life”.  Similar declarations are found in International Covenant on Civil and Political Rights (ICCPR) Art.6 (incorporated into Hong Kong law by the Basic Law) and European Convention for the Protection of Human Rights and Freedoms (ECHR) Art.2.

17.  In R (Middleton) v. West Somerset Coroner [2004] 2 AC 182, the House of Lords (Lord Bingham, Lord Hope, Lord Walker, Baroness Hale and Lord Carswell) considered what is involved if a state or government is to take the “right to life” seriously. 

18.  Their Lordships first observed that the European Court of Human Rights had repeatedly interpreted ECHR Art.2 as imposing substantive and procedural obligations on member states (including the UK).  The substantive obligation was:-

“… not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent practicable, protect life” (Middleton, para.2).

The procedural obligation was:-

“… to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the [substantive] obligations has been, or may have been, violated and it appears that agents of state are, or may be, in some way implicated” (Middleton, para.3).

19.  The substantive and procedural obligations went hand in hand.  They complemented each other.  Thus, without the procedural obligation to back it up, a declaration of a substantive right to life would lack teeth.  The right would remain wholly abstract. Without a commitment to the procedural obligation, for instance, a state acting through its agents could wrongfully or arbitrarily deprive a person of life with impunity, not being answerable to anyone for the transgression.

20.  Given their similarity in wording and thrust to ECHR Art.2, the House of Lord’s observations and reasoning in Middleton must apply equally to BL Art.28, HKBOR Art.2(1) and ICCPR Art.6.  Those latter provisions must impose identical substantive and procedural obligations on the Hong Kong Government.  In particular, a mere affirmation of the substantive right to life in the BL and HKBOR would be of little practical value without a supporting mechanism whereby an independent body can publicly investigate the circumstances in which someone may or may not have been wrongly deprived of life by another person. 

21.  In the UK, as in Hong Kong, a coroner’s inquest is an important part of the established procedure for conducting an independent investigation into possible wrongful deprivation of life.  An inquest is plainly not the only mechanism for such investigation, since (for example) an inquest into a death may lead to (and be adjourned pending the conduct of) criminal proceedings against the person whose conduct is being investigated.  But the inquest is nonetheless the conventional means by which the procedural obligation imposed by ECHR Art.2 in the UK, and BL Art.28 and HKBOR Art.2(1) in Hong Kong, is discharged.

22.  The House of Lords in Middleton consequently considered whether, in the UK context, coroner inquests met the procedural requirements of ECHR Art.2. 

23.  The UK legislation at the time of Middleton required the Coroner conducting an inquest to determine “(i) who the deceased was; and (ii) how, when and where the deceased came by his death”.  In a series of judgments especially from Ex p. Jamieson [1995] QB 1 (in which the implications of the ECHR on the conduct of inquests had not been not considered), the English Court had interpreted the word “how” narrowly as meaning “by what means” as opposed to “in what broad circumstances”.

24.  The House of Lords in Middleton unanimously held that such narrow understanding of the Coroner’s role could not meet the requirements of the ECHR in all cases.  To comply with ECHR Art.2, it was instead necessary to read the relevant English legislation, specifically the word “how”, in “the broader sense ..., namely as meaning not simply ‘by what means’ but ‘by what means and in what circumstances’”.

25.  The House of Lords so concluded because in some (although not necessarily all) cases too narrow a focus on the immediate or direct cause of a death would preclude an investigation into systemic circumstances which might have brought about the death.  Take the example of Middleton where a prisoner hanged himself. Concentrating exclusively on the direct means by which the prisoner died could lead to a simple conclusion of death by suicide while mentally disturbed.  But (as was apparently the situation in Middleton) such conclusion might not give a complete picture.  The jury considered that the mental disturbance which caused the prisoner to take his life had been caused or exacerbated by a lack of proper care from prison officials.  The jury wished to make a note of that finding but was prevented from so doing by the Coroner acting upon the narrow Ex p. Jamieson view of the purpose of an inquest. 

26.  Preventing the jury from addressing the systemic cause of death in Middleton, could potentially result in other prisoners taking their lives in similar circumstances due to a lack of proper care and attention.  The limited type of investigation envisaged by the Coroner in Middleton could not therefore be an effective means of preventing future deprivation of life and the UK would be failing in its procedural obligation under ECHR Art.2.

27.  Consider the position in Hong Kong.

28.  CO s.27 states the “purpose of an inquest” is “to inquire into the cause of and circumstances connected with [a] death”.  The section then provides that “for that purpose, the proceedings and evidence at the inquest shall be directed to ascertaining ... (b) how, when and where the person came by his death”. 

29.  In Dr. Gilbert Tien v. William Lam Esq., Coroner [2004] HKLRD 719, Hartmann J adopted the analysis in Ex p. Jamieson as to the narrow meaning of the word “how” in CO s.27(b).  Citing Ex p. Jamieson, the judge stated (at para.13):-

“In respect of the obligation detailed in CO s.27(b) ... I am satisfied that this obligation has brought no change to either the earlier legislative regime or the established practice in terms of which the question to be decided is a limited factual question of the means by which the person came by his death and not in what broad circumstances he did so.”

30.  In Tien Hartmann J’s attention does not appear to have been specifically drawn to BL Art.28 or HKBOR Art.2(1) and to their implications on the construction of “how” in CO s.27(b). Instead, in support of a narrow reading of “how” Hartmann J specifically referred to a passage from the judgment of Sir Thomas Bingham MR in Ex p. Jamieson.  Ironically, we have seen that by 2004 (when Tien was decided), in light of counsel’s submissions in Middleton on ECHR Art.2, Lord Bingham (as the Master of the Rolls had become) had changed his views on the scope of an inquest. 

31.  Most recently, in Secretary for Justice v. William Ng Esq., Coroner HCMP No. 690 of 2009 (2 December 2010), following Hartmann J in Tien, Fok J has stated (at para.50) that the word “how” in CO s.27(b) only gives rise to “a limited factual question directed at the means by which the deceased came by his death and not in what broad circumstances the deceased died”. 

32.  But again Fok J’s attention does not appear to have been drawn to BL Art.28 and HKBOR Art.2(1). Nor does Middleton seem to have been cited to him.

33.  In my judgment, the reasoning in Middleton on the UK’s obligations arising from ECHR Art.2 and the implications of those obligations on the proper scope of a coroner’s inquest, must be equally applicable here.  This must be so in light of BL Art.28, HKBOR Art.2(1) and the incorporation into Hong Kong law of ICCPR Art.6.  Reading the word “how” in CO s.27(b) as requiring in all situations a limited factual investigation into the immediate means (as opposed to broad circumstances) in which a deceased died, would mean that in some situations the Government would not be fulfilling its procedural obligation in connection with the right to life.

34.  Obviously, as the House of Lords itself noted in Middleton, it will not be in all situations that an inquiry into the broad circumstances of a death will be required.  In many, possibly a majority of instances, it will be readily apparent how a person died and there will be nothing in the evidence suggestive of some systemic problem which caused or contributed to the death.  But to be compliant with the procedural obligations arising from the guarantee of the right to life in the BL and HKBOR, a coroner must retain the power or discretion, where circumstances warrant, to investigate in appropriate cases whether systemic factors (broad circumstances) caused or contributed to a death.  Thus, in light of the BL and HKBOR, I do not believe that a narrow reading of “how” in CO s.27(b) can be justified.

35.  Following the coming into effect here of the BL and HKBOR, the Court has the duty to interpret legislation in a manner which is consistent with the obligations arising from those two documents.  It seems to me therefore that, consistently with the BL and HKBOR, I should construe the word “how” in CO s.27(b) to permit a wider range of inquiry.  In other words, much as suggested in Middleton in relation to the corresponding UK legislation, the word “how” in CO s.27(b) should be read as empowering an inquest, where appropriate, to investigate not just the means by which a person has died, but also the broad circumstances in which one has lost one's life.  I do not think that the first instance decisions of Hartmann J or Fok J constrain me from arriving at this conclusion.

36.  In reality, Mr. Westbrook had little quarrel with the foregoing analysis as presented by Mr. Dykes. Mr. Westbrook fairly accepted that, in light of Middleton, CO s.27(b) should perhaps be interpreted more widely than it has been so far. 

37.  Where Mr. Westbrook differed from Mr. Dykes was as to whether, even on the wider Middleton reading of s.27(b), the Coroner could be said to have erred in any material way in reaching the conclusions which he did.  It is to this dispute that I now turn my attention.

A.2   Disclosure of documents

38.  At the inquest, Rai’s counsel sought to examine Hui’s training in the use of pepper spray, police batons and firearms. Counsel wished, in particular, to examine how Hui had been taught to react to an attack by an assailant and to assess whether a given situation necessitated the use of any particular degree of force.  To this end, counsel sought discovery of police training materials and general orders.

39.  In the course of the inquest, sometimes after much initial reluctance, the Commissioner voluntarily provided some of the training materials and general orders requested.  More particularly, the following materials (among others) were provided to the jury:-

(1)   Police General Order (PGO) 29-01 on “Use of Force”.  This observed that an officer should “exercise a high degree of restraint when dealing with the public”.  It stated that an officer “shall not resort to the use of force unless such action is strictly necessary and he is otherwise unable to effect his lawful purpose”.  It noted that “[t]he principle governing the use of force” was that “only the minimum force necessary to achieve the purpose may be used and once that purpose has been achieved, the use of force shall cease”.  The PGO concluded that “[t]he force used must be reasonable in the circumstances”.

(2)   PGO 29-03 on “Use of Police Firearms”.  This listed the situations in which an officer may discharge a firearm.  Such situations included those where the officer’s object was “to protect any person, including himself, from death or serious bodily injury” or “to effect the arrest of any person who he has reason to believe has just committed a serious and violent crime, and who attempts to evade such arrest”.  But the order also stressed that firearms may be used for a listed purpose “provided that no lesser degree of force can achieve this purpose”. 

(3)   PGO 29-04 on “Drawing or Presenting Police Firearms”.  This stated when an officer may draw a revolver from his holster or point or aim it as a precautionary measure.

(4)   PGO 29-09 on “Use of OC Foam (Oleoresin Capsicum)”.  That stated that use of OC foam (pepper spray) “can be considered to obtain compliance when a person is involved or likely to become involved in violent or other behaviour likely to injure himself/ herself or others”.

(5)   Force Procedures Manual (FPM 29-02) on “Use of Force Continuum”.  This set out in table form a continuum of measures which an officer might use to deal with increasing levels of resistance from a person.  For instance, the table suggested the use of OC foam in response to “defensive resistance” by an individual, the use of OC foam or a baton in response to “active aggression”, and the use of a firearm (that is, “deadly force”) in response to “deadly force assault”.

(6)   Hui’s training history and records (including Hui’s marks).  

40.  Not content with the Commissioner’s disclosure, Rai’s counsel sought the following additional documents:-

(1)   Power Point printout relating to the use of force used in training lectures.

(2)   Power Point printouts relating to situation appraisal used in training lectures.

(3)   5 sets of instruction notes to the instructors for conducting training exercise.

(4)   Training notes on OC foam spray prepared by Police Tactical Unit (PTU) in May 1998.

(5)   Training notes on OC foam spray prepared by PTU in March 2000.

(6)   Power Point training notes on OC foam prepared by weapons Training Division in 2002.

(7)   PTU training notes on OC foam prepared by PTU in November 2006.

(8)   Training notes on “Stop, Question, Search” prepared by PTU in January 2005.

(9)   Power Point training notes on “Tactical Use of Firearms” prepared by PTU in September 2005.

(10)  DVD containing use of force decision-making video scenarios prepared by Police on diverse dates.

(11)  Training notes on “Use of Force and Firearms” prepared by PTU in July 2005.

41.  The Commissioner refused disclosure.  In support, the Commissioner provided 2 certificates by the Chief Secretary setting out why, in the Chief Secretary’s view, the documents sought were subject to public interest immunity.  As it was anticipated that a request would be made for 2 additional documents, the first certificate produced also covered the Training Tactics Manual and Internal Security Manual mentioned in the Power Point materials sought by Rai’s counsel.

42.  The Chief Secretary stated his opinion, having personally reviewed the documents sought, that disclosure would not be in the public interest.  In particular, the Chief Secretary was concerned that public disclosure of the general tactics, techniques and guidelines used by the police to control individuals and crowds might enable would-be wrongdoers to develop counter-measures to thwart police operations. 

43.  The certificates referred to the documents falling into “a recognised general class of documents covered by public interest immunity”.  But the certificates also gave brief particulars of the contents of each document sought.  This was done to indicate how public disclosure of the contents of any particular document might seriously prejudice the police in their operations.

44.  Where a document is relevant to Court proceedings but is subject to public interest immunity, a judge in deciding whether or not to order disclosure must carry out a balancing exercise.  The judge must weigh the conflicting public interests.  On the one hand there is the potential harm to the public if the document is disclosed. But, on the other hand, it is equally in the public interest that justice be duly and fairly administered in an individual case before the Court.  See Matthews and Malek, Disclosure (2007), paras.11.85 to 11.87.

45.  The Coroner accepted that the documents sought by Rai’s counsel were relevant.  But he also held that they were subject to public interest immunity.  Carrying out the requisite balancing exercise, he held against disclosure of the materials.

46.  In refusing disclosure, the Coroner stated (in translation):-

“... It seems that according to what Mr. Kat [Rai’s counsel] had said, without these documents, this would not be an open and fair inquest, and the counsel representing the deceased cannot do what they should be doing to present their case.

Perhaps I shall remind you all now that today is the 62nd day of this inquest. Originally we wanted to call 69 witnesses but through consultation between various parties, we are already calling or listening to the testimony of the 59th witness. When we listened to their testimony, we sometimes merely listened to witnesses’ statements read out in the court, but we have heard evidence from 59 witnesses, and there is a large amount of forensic, forensic evidence. When PC Hui was questioned in the witness box, if I am not wrong in saying so, out of the ten days, Mr. Kat questioned him for eight or eight and a half days. I believe that the written statements as evidence alone consist of over 200 pages in the evidence; therefore, I have grave reservations in relation to what Mr. Kat said, that if we do not have these teaching materials that were used four years ago, these teaching materials, we may not have a fair, open and just inquest.

Then what documents we are talking about are? ... the documents we are talking about here are the brief reports used by the trainers in the tactics continuation training course that PC Hui attended four years ago, the documents used for the brief report and the instruction notes that telling the trainers how to carry out some practical training. In fact, it is not the case that Mr. Kat does not know what training PC Hui received. I believe in the eight days of questioning, in great details, in great details he questioned PC Hui about his training. Just as I have said, in this inquest, the police officers have already provided lots of information about PC Hui to the deceased’s family, which includes not only the records and marks of the training that the police officer has received but also everything about him including the information of all the cases he handled from the date he joined the Police Force until the date of the incident, especially the cases in which the counterparties are foreigners. Is it true that without the information we mentioned earlier, those who represent the deceased’s widow will not be able to carry out their questioning effectively?

Just as I have said, as I have said many times before, of course PC Hui received training, and what training he received is relevant. In relation to this case, when we have to judge, in the end we have to judge whether what he did in fatally shooting the deceased is unlawful or lawful. In this respect, the training he received is relevant. However, this is only one of the aspects. The training that PC Hui received is only one aspect of the evidence that the jury have to consider. The information about the course at most can only tell us what the trainers taught and at most only gives information about that, what the trainer taught. It is not about the question of what PC Hui should do on that very day. The most important question to be considered is what he had actually done and why he did so. We are not to consider whether PC Hui is a good student, nor are we to consider whether the trainer gave his teaching satisfactorily or not.

Here perhaps I should mention this, because Mr. Kat has also mentioned this, that is the question regarding the system.  He said that perhaps there was one thing we had to know, that is, how the trainers taught the students, because that may be a question that involves the system.  With respect, it is also very difficult for me to see why from one particular incident we can see whether there is a problem or not in the police’s system in teaching the students.  Under the detailed questioning by Mr. Kat, PC Hui did not say, ‘I did not learn this, I don’t know, I don't know how to do this,’ Mr. Kat asked him many questions about what he should do, whether he had learned this, whether he had learned that, and if he had learned that why he did not act in a certain way.  PC Hui had answered all these questions one by one.  Then if we get the teaching materials used on that date, then can we say that they are determinative, or relevant to this case?  I see nothing of that. In my view, we cannot say that these documents are not relevant to this case, but as matter of degree, they are only of peripheral relevance, or peripheral relevance.  Therefore, if I am to carry out a balancing exercise, this procedure, I am also unable to see why such teaching, the Power Point print out used in the teaching then or the exercise given to the trainers telling them why the practical training was carried out, may outweigh the public -- the right of public interest immunity in relation to these documents.”

47.  Immediately after the lengthy passage just quoted above (Passage A), the Coroner said this (Passage B) (in translation):-

“Perhaps here, I will say a bit more, because we have spent a lot of time on these submissions, very often these English authorities were mentioned, involving the [ECHR]. Simply put, up until now, in relation to the interpretation of [CO] section 27 in Hong Kong, that is to say how, when and where the person came by his death, this is still a very narrow interpretation, that is the interpretation in the case of [Tien], and also because Hartmann J in this case of [Tien] applied the case of Jamieson, so therefore we can put it this way, as a matter of law in Hong Kong, the interpretation of the ‘how’ in how, when and where is the same as that in Jamieson. In England, because as I have mentioned, the court in England, because they are a signatory to the European Union, to implement the [ECHR], they have to broaden the [interpretation of] the word ‘how’.

As I have already said earlier, those authorities as not binding in Hong Kong, although they are highly persuasive, but we have to be very careful, because this is not a small change, this is a very big change with far-reaching impact, and it also involves questions in many areas, it involves the structure of the coroner’s court, its duty, what kind of inquest should be held, the scope of the inquest, this is a very important, very big change. Whether this change can, in this way, or with respect, whether it can follow the English way, to broaden [the interpretation] of this word ‘how’, is the best way [to proceed]? Or should we reconsider carefully the duty, structure and scope of the coroner’s court, whether for example this is something for the consideration of the Law Reform Commission? These considerations are for the court -- of course by the court I am referring to is not our coroner's court, I am referring to a higher level, appellate court or Court of Final Appeal. This should be a matter left for the consideration of a judge of the High Court, or consideration of the Legislative Council, or for the Department of Justice to take the initiative to consider? These are very important questions [with] very far reaching [impact].

I will take this opportunity to say that up until now the law in Hong Kong is [Tien], that is to say adopting the interpretation in Jamieson, and I will also act in accordance with that case.  I have said many times that because at the end of the day we have to consider what is the purpose of the inquest, because that purpose of inquest has perhaps already been tainted with a different colour in England and because as England is a signatory to [ECHR], that purpose of inquest has perhaps already been tainted with a different colour.  Then should Hong Kong follow that direction?  That is as I said earlier a very big question.  I can only say that in the present case I will not follow the English authorities but I will follow Hong Kong authorities.  That is all that I have to say.”

48.  Mr. Dykes submits that it was apparent from Passage B that the Coroner had conducted the inquest on the basis of a narrow reading of the word “how” in CO s.27(b).  This (according to Mr. Dykes) may have led the Coroner to reject requests by Rai’s counsel that the Coroner override the claim to public interest immunity and order the Commissioner to produce the relevant training materials. 

49.  Mr. Dykes suggests that by taking too narrow a view as to the purpose of the inquest, the Coroner misunderstood his function and may not properly have carried out the requisite balancing exercise where public interest immunity is claimed.  The Coroner may not (for example) have attached sufficient weight to the peremptory character of the right to life. 

50.  Had the Coroner appreciated that the scope of an inquest was much wider in the Middleton sense, he ought most likely (Mr. Dykes contends) to have given paramount weight to the right of life.  He ought (Mr. Dykes argues) to have held that the need to investigate any systemic circumstances leading to Limbu’s death trumped the Government’s claim of public interest immunity.  Then, if disclosure had been ordered, the material could (Mr. Dykes reasons) have led to a train of inquiry which might conceivably have caused the jury to reach a different verdict.

51.  Mr. Dykes stresses that it is enough for him to establish that, had the wider Middleton reading of an inquest's purpose been applied, the Coroner “may” have reached a different conclusion on disclosure and the jury come to a different verdict.  It is not necessary (Mr. Dykes says) for the purposes of this judicial review to prove that the Coroner and jury would definitely have reached different conclusions.  Nor (Mr. Dykes adds) can I remedy matters by carrying out a balancing exercise myself and (say) coming to same decision as the Coroner on disclosure.  This is because, in a judicial review, my role is collateral and supervisory.  I therefore cannot, according to Mr. Dykes, substitute my views (whatever they might be) for those of the Coroner.

52.  I am not persuaded by Mr. Dykes’ submission.

53.  As Mr. Westbrook points out, although the Coroner expressed his preference for the narrow approach in Tien, the Coroner actually applied the wider approach in Middleton.

54.  It is plain from Passage A, read in context, that the Coroner appreciated that training materials for which public interest immunity was claimed, were relevant documents.  The Coroner was aware that Mr. Kat wished to investigate the broad circumstances of the training received by officers such as Hui. 

55.  But what the Coroner was also concerned about was to ensure that any investigation of the police training system did not go to unreasonable, inordinate or disproportionate lengths.  He was (in my view, rightly) skeptical of the probative value of the material sought to be disclosed, which consisted almost entirely of derivative material (such as Power Point slides used in training), in light of the material already produced by the Commissioner and in light of the facts elicited about Hui’s training in the course of Hui’s protracted cross-examination.

56.  It was the Coroner’ duty to keep control of the inquest and ensure that matters did not get out of hand.  This is precisely what he was doing.  He carefully carried out a balancing exercise and found that the peripheral relevance of the documents sought did not outweigh the public interest against disclosure.

57.  That the Coroner expressed a preference for the Tien approach in Passage B can hardly be surprising given that, until this Judgment, the Court has consistently approved that approach.  However, it does not follow from this that the Coroner actually took the narrow approach.  What emerges from Passage A is that, even if he had endorsed the Middleton approach which Mr. Kat was urging upon him, the Coroner would not have come to any different conclusion on disclosure.

58.  Before leaving the subject of disclosure, I should deal with two minor criticisms levied against the Coroner by Mr. Dykes on this same subject.

59.  First, Mr. Dykes has suggested that the Coroner wrongly attached weight on the Chief Secretary’s certificates claiming public interest immunity.  This is because (according to Mr. Dykes) the certificates made a “class” claim in relation to the documents said to be privileged from discovery.

60.  Previously, the UK Government would claim public interest immunity either because the content of a document was thought to be sensitive or because a document belonged to a class which normally attracted immunity.  In 1996 the UK Government abandoned such practice.  This was because it “regard[ed] this distinction as no longer helpful”.  Instead, the UK Government “adopt[ed] a new approach which applies the fundamental test of whether the maker of a certificate believes that disclosure would cause real damage”.  See Matthews and Malek, Disclosure (2007), para.11.85.

61.  In light of the present UK practice, the Coroner (Mr. Dykes says) ought to have disregarded the certificates insofar as they made a claim for class immunity.

62.  I do not accept Mr. Dykes’ submission. 

63.  It is true that the certificates refer to class.  But, as I have stated above, they do more than rely on class immunity.  In his certificates, the Chief Secretary condescended to detailed reasons as to why disclosure of the contents of the documents might result in real damage.  He also gave particulars of the individual documents to establish that their contents actually fell within the reasons articulated.

64.  Second, Mr. Dykes faintly suggested that the Coroner’s decision against Mr. Kat on disclosure of documents gave rise to apparent bias. 

65.  Mr. Dykes contended that, applying the well-known test of apparent bias in Porter v. Magill [2002] 2 AC 357 (HL), a fair-minded and informed observer considering the relevant facts, would reasonably have an apprehension of bias as a result of the Coroner’s decision.  Mr. Dykes bolsters this submission by reference to the Coroner’s remark at a pre-inquest review to the effect that “what we have [by way of documents] in the PIP bundle is sufficient”. 

66.  There is nothing in this submission. 

67.  Apparent bias does not arise simply because a tribunal makes a decision adverse to the course of action advocated by a party.

68.  Further, it was the Coroner’s duty to keep all aspects of the inquest within proportion, especially in terms of time and cost.  This duty included ensuring that the hearing bundle was not stuffed with useless, unnecessary, irrelevant or peripheral material. It is commonplace for a tribunal in the interests of case management to urge the parties to limit the volume of a hearing bundle to something manageable. The Coroner in making the remark which he did was only carrying out his duty. It is nonsense to suggest that some informed observer would reasonably apprehend bias from such remark.

A.3   Form of verdict

69.  The jury delivered a short form verdict.  Its decision was unanimous. 

70.  The Coroner sought particulars of the deceased (name, gender, date of birth, occupation and usual address) from the jury.  He then asked the jury to state how Limbu’s death had occurred.  The jury replied: “The deceased was lawfully killed.”  The Coroner asked whether the jury had any recommendations.  The jury replied: “No recommendations”.

71.  Mr. Dykes argues that the Coroner should have required the jury to make a narrative verdict.  In other words, the Coroner should have required the jury to answer questions about the broad circumstances in which Limbu’s death occurred.  This (Mr. Dykes suggests) would have concentrated the jury’s mind on its duty to investigate whether any systemic matters (such as a lack of proper police training) caused Limbu’s death. 

72.  Mr. Dykes accepts that in many cases, even where the Middleton approach is applied, a narrative verdict will be unnecessary and a short form verdict will suffice. But here Mr. Dykes reasons that the Coroner's acceptance of Tien indicates that he did not appreciate even the possibility of the inquest and jury considering the broad circumstances behind Limbu’s death.

73.  I am not persuaded by Mr. Dykes’ submission.

74.  First, as I have already stated, as far as I can see from Passage A, the Coroner was alive to the fact that Mr. Kat was seeking to explore potential systemic causes of Limbu’s death.  The Coroner was prepared to entertain such exploration, but within reasonable limits.

75.  Second, it is unclear how a narrative verdict would have produced a different pronouncement from the jury.  The jury’s conclusion of lawful killing without any recommendation implies that the jury did not believe that any systemic defect in Hui’s training had led to Limbu’s death.

76.  Third, in contrast to the UK where a jury is not permitted to make a recommendation or qualify its verdict with a rider, a Hong Kong jury may make recommendations as part of its verdict.  More particularly, a jury may make recommendations to prevent the recurrence of similar fatalities; to prevent other hazards of life disclosed by the evidence; or to draw attention to deficiencies in a system or method of work which are of public concern.  See CO s.44(2).

77.  At the end of his summing up, the Coroner specifically told the jury that it could, if it thought necessary, make recommendations for the purposes mentioned in CO s.44(2) (including to bring attention to deficiencies in a system of work of public concern).

78.  Given that, it is hard to see a material difference between what the Coroner did in inviting recommendations and what Mr. Dykes advocates by way of requiring the jury to deliver a narrative verdict.  Mr. Dykes submits that there is “a world of difference” between the two courses of action.  But I discern no practical difference on the facts of the present case.

79.  Before leaving the subject of the jury’s verdict, I should deal with a minor criticism by Mr. Dykes of the Coroner’s summing up.

80.  The Coroner invited the jury to consider 3 possible verdicts: (1) unlawful killing by manslaughter; (2) lawful killing; or (3) an open verdict.  The possibility of the third verdict was available to the jury where it genuinely could not decide between the first two verdicts.

81.  Mr. Dykes suggests that the Coroner ought to have also directed the jury to consider a verdict of unlawful killing by murder.  Mr. Dykes says that the jury should have been allowed to decide whether or not Hui intended to kill or inflict really serious bodily harm.  Mr. Dykes submits that this fourth verdict should have been permitted given the undisputed core evidence that Hui knew that to shoot was to use lethal force and that, when he fired, Hui intended to stop Limbu.

82.  I do not find irregularity in the Coroner’s summing up in this respect.

83.  First, it does not follow from the admitted facts alone (namely, that Hui knew shooting was using lethal force and that Hui intended to stop Limbu) that Hui intended to kill Limbu or even inflict serious bodily harm.  Thus, for instance, it is plausible that Hui intended to use proportionate force to stop (albeit not seriously injure) Limbu, but that in the heat of the moment Hui used more force than was necessary.

84.  Second, it was for the Coroner in the exercise of his discretion to consider, in light of the evidence, what possible verdicts he should invite the jury to consider. Typically, not all options are left to a jury.  Only those verdicts which are reasonably possible on the evidence are put to the jury to consider.  It seems to me that, as Mr. Westbrook submits, the Coroner’s summing up adequately addressed the key legal issues which arose at the inquest, namely, the nature of lawful and unlawful killing and the law relating to self-defence (including what constitutes reasonable force).

85.  Third, the jury had the option of returning an open verdict where it genuinely could not decide if the killing was lawful or unlawful.  But the jury did not take that option.  As Mr. Westbrook argues, that the jury unanimously returned a verdict of lawful killing implies that it was satisfied that the killing was lawful and a verdict of unlawful killing was inappropriate.  Thus, even if a verdict of unlawful killing by murder had been left to the jury, it is improbable that the jury would have returned such a verdict.  Mr. Dykes’ submission does not appear to have any material consequence on the facts of the present case.

A.4   Evidence of previous conviction

86.  The Coroner allowed evidence of Limbu’s previous convictions for crimes involving violence to be adduced at the inquest.  He did not allow Limbu’s records for crimes not involving violence to be adduced.

87.  Mr. Dykes says that the Coroner ought not to have allowed any evidence of Limbu’s previous convictions to have been introduced.  He suggests that, had the Coroner followed the Middleton approach, the Coroner would have excluded such evidence.

88.  I disagree with Mr. Dykes.

89.  First, I do not see how Middleton has anything to do with the point being made. The touchstone for the admission or exclusion of evidence at an inquest is relevance.  This is true whether one adopts the narrow Tien or the wider Middleton approach.  Evidence of previous convictions for acts of violence goes towards establishing Limbu’s propensity to attack others violently.  Such evidence falls within the narrow Tien question of precisely how a death happened.  Such evidence does not relate here to systemic issues.

90.  Second, the Coroner seems to me to have been justified in treating the previous convictions as admissible.

91.  The Coroner reasoned as follows (in translation):-

“In our case, in brief, PC Hui alleged that when he was investigating a case of complaint of suspected illegal immigrant causing sanitary disturbance, he walked to the front of the deceased and asked the deceased in English ‘Did you have ID card’, and the deceased did not look at PC Hui and answered No in English and then walked away from PC Hui. PC Hui therefore shouted loudly in English from behind the deceased, ‘stop’, but the deceased ignored him and continued to walk. Therefore, PC Hui stepped forward and put a hand on the deceased’s shoulder to tell him to stop, but the deceased turned around and hit PC Hui in the face with his fist. Then the deceased not only continued to attack PC Hui, and paid no attention to repeated instruction and warning given to him in Punti by PC Hui. PC Hui alleged that during the period of time, he used police baton and pepper spray to resist the deceased’s attack, but with no effect. Therefore at the later stage, he showed his gun to give a warning and used Punti language to warn the deceased, but the deceased kept on chasing him to attack him, and he fell down as he was running away from the deceased’s attack, causing the lower part of his body to become paralyzed. At that time, the deceased held a weapon by hands to attack him. PC Hui alleged that because he was no longer able to dodge and could not move, and in addition he felt that his life was under threat, he therefore opened fire in self defence. Obviously, in this case, the core matters that the jury needs to make findings upon is whether or not Mr. Limbu has made the unexpected and continuous attacks under the circumstances alleged by PC Hui.”

92.  A third party witness saw Limbu attacking Hui.  But that witness only had a partial view of what was happening. 

93.  It also appears to have been suggested to Hui in the course of his long cross-examination that, immediately before the shooting, far from attacking, Limbu was turning away or going away from Hui.

94.  In those circumstances, the Coroner could reasonably hold that evidence of Limbu’s previous propensity to attack persons violently was relevant to the jury’s consideration of what happened at the hillside.  I am unable to conclude that the Coroner's decision to admit evidence of Limbu’s previous conviction for acts of violence was so unreasonable that no coroner could possibly have allowed the same. 

A.5   Conclusion on Coroner’s approach

95.  The Coroner stated a preference for the Tien approach.  But he actually applied the wider approach in Middleton.  I therefore do not think that the outcome of the inquest would have been different if the Coroner had expressly treated Middleton as applicable under Hong Kong law.

B.   Misdirection of jury 

96.  Mr. Dykes in his written submissions suggested that the Coroner had misdirected the jury in a number of respects. 

97.  I have already dealt with the allegation that the Coroner misdirected the jury by failing to invite them to consider a verdict of unlawful killing by murder.  It was additionally alleged that the Coroner had erred in relation to the law of self-defence, the “law of retreat”, the “different categories of expert scientific evidence”, the availability of a verdict of unlawful killing by gross negligence manslaughter, and the use of OC foam.

98.  In oral argument, Mr. Dykes stated that, apart from the exclusion by the Coroner of a verdict of unlawful killing by murder, Mr. Dykes would not be pressing a case of misdirection.  Consequently, in light of what I have decided in relation to the verdict of unlawful killing by murder, I need not consider misdirection further.

C.   Appearance of Bias

99.  Mr. Dykes argued that there was apparent bias in the Porter v. Magill sense on 3 grounds.

100.  I have already dealt with the allegation of apparent bias arising from the Coroner’s decisions on disclosure.  The two other grounds alleged are the Coroner’s decision to treat Chinese as the language of the inquest and the Coroner’s decision not to allow the jury to have before it a copy of Professor Beh Swan Lip’s expert report on the trajectory of the bullet that killed Limbu.

101.  There is nothing in the allegation of bias arising from the Coroner’s choice of language. 

102.  Rai herself speaks Nepali and understands little (if any) Chinese or English.  Her counsel (Mr. Kat), however, submitted that the inquest should be conducted in English to accommodate his own lack of ability in Chinese.  Legal Aid had instructed an English-speaking firm of solicitors (Vidler & Co.).  It was also suggested that English should be the language of choice for that reason. It was further contended that there would inevitably be difficulties in translating evidence from Chinese to English and then from English to Nepali.  This was because it was not possible to find an interpreter who could translate from Chinese directly into Nepali. 

103.  According to Mr. Dykes, given the principle of the sanctity of life enshrined in the BL and HKBOR and Rai being the widow of the deceased, the Coroner ought to have treated the submissions of Rai’s counsel on the use of English as trumping all other considerations.

104.  The Coroner carefully weighed the pros and cons of conducting the inquest in Chinese and English. The other PIPs, for instance, preferred proceedings to be in Chinese.  The jury was more comfortable with Chinese than English.  Witnesses were largely more comfortable in Chinese, rather than in English.  Mr. Kat had a junior (Ms. Ann Lui) who is fluent in Chinese.  Further, arrangements could be made for Chinese oral evidence or submissions to be simultaneously interpreted for Mr. Kat’s benefit and that of his solicitors.

105.  In those circumstances, whatever choice the Coroner made would be bound to run up against some difficulty or another.  There was no one obviously ideal language for the conduct of the proceedings.

106.  I therefore do not see how the Coroner can be said to have acted irrationally in choosing Chinese.  I do not think that it can be plausibly suggested that the Coroner's choice of language was indicative of bias.

107.  As for Professor Beh, the gist of his evidence was that the bullet which killed Limbu was fired horizontally through Limbu’s ear into his brain.  That implies (according to Professor Beh) that Limbu was not directly facing Hui at the time when Limbu was shot.  If so, at the time of his death, Limbu might not have been threatening Hui with a frontal assault (as Hui alleged) and indeed Limbu might have been moving away from Hui (as Rai’s counsel were suggesting).

108.  The Coroner thought that it would be better if Professor Beh gave oral evidence (which Professor Beh did).  Professor Beh was then examined and cross-examined with the aid of charts (copies of which were provided to the jury) over many days.  The Coroner believed that this mode of proceeding would be more helpful to the jury than having Professor Beh’s written report and its appendices.

109.  The Coroner carefully summed up Professor Beh’s evidence and its implications before the jury retired to deliberate. 

110.  Mr. Dykes submits that, only having a copy of the Government report on the trajectory of the fatal bullet, could have prejudiced the jury against Professor Beh’s evidence.  The jury might then (Mr. Dykes alleges) failed to reach a balanced view of the forensic evidence.  The jury ought to have been allowed sight of Professor Beh’s report, if only as an aide-memoire.

111.  I can see nothing suggestive of bias in the manner in which the Coroner proceeded.  Further, I do not believe that the absence of Professor Beh’s written report could in any way have prejudiced the jury in its deliberations.  This is because of the time actually made available for Professor Beh to articulate his views to the jury and the Coroner’s summing up of Professor Beh’s evidence.

D.   Effect of CO s.21(1)(b)

112.  CO s.21(1) provides:-

“Where the Court of First Instance, upon the application in open court of a properly interested person or the Secretary of 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, and where an inquest has been already held, may quash the findings of the coroner or jury at that inquest already held.”

113.  In Secretary for Justice v. Ng (cited above), Fok J stated (at para.39) in relation to CO s.20(1)(a):-

“[T]here is no reason to think that there might be parallel judicial review proceedings in respect of a decision by a coroner not to hold an inquest so that there would be a need to have to have same standard of review on an application under section 20(1)(a) of the Ordinance as on the judicial review application. This is because, given the existence of the statutory power to apply to the Court of First Instance for an order that an inquest be held, it is likely that any application for leave to apply for judicial review against a coroner’s decision not to hold an inquest would be met by the contention that judicial review proceedings should not be invoked before the applicant had exhausted all statutory remedies, including an application under section 20(1)(a) of the Ordinance.”

114.  In the present case, CO ss.20(1)(a) and (c) are inapplicable.  The Coroner has not refused to hold an inquest and, an inquest having been held, no party is seeking to adduce new facts or evidence. The only relevant limb is s.20(1)(b).

115.  Mr. Westbrook argues that, by analogy with Fok J’s reasoning in relation to CO s.20(1)(a), a judicial review application should not have been brought in this case until at least after the remedy in s.20(1)(b) had been exhausted.  No application having been previously made here under s.20(1)(b), Mr. Westbrook invites me to dismiss Rai’s judicial review on this ground alone.

116.  In Re Rapier [1988] 1 QB 26, Woolf LJ suggested that, where the UK equivalent of CO s.20(1)(b) is invoked, there was nothing wrong in a party making an application both under the statute and by way of judicial review.  This is clear from Coroners Act 1887 s.35 (which has no equivalent in Hong Kong) which states that nothing in the Act “shall ... in any manner prejudice or affect the jurisdiction of the High Court of Justice or of any judge thereof in relation to or over a coroner or his duties”.  

117.  Note that the UK version of s.20(1)(b) (Coroners Act 1887 s.6 as clarified by Coroners (Amendment) Act 1929 s.19) only applies where a party has obtained the Attorney-General’s fiat to proceed.  A PIP may not in the UK (in contrast to Hong Kong) bring proceedings on the PIP’s own application without the Attorney General’s fiat.  If a PIP also wishes to apply by way of judicial review in the UK, it will normally be necessary to apply for leave for judicial review even if the party has already obtained the Attorney-General’s fiat.

118.  In light of Re Rapier, I do not think that CO s.20(1)(b) precludes the possibility of judicially reviewing the Coroner.  Nor do I read Fok J’s dictum as always excluding the possibility of reviewing the Coroner where (say) the latter refuses to hold an inquest.  The question is a matter of discretion.  All Fok J was saying is that, as in any situation where available remedies have not been fully pursued before leave for judicial review is sought, it is a matter for the Court in the exercise of its discretion whether to entertain a judicial review or to insist that an applicant exhaust other remedies. 

119.  In some cases, it may be appropriate for an applicant to seek judicial review at the same time as an application under CO s.20(1).  In other cases, it may be better for an applicant simply to pursue one form of remedy (CO s.20(1) or judicial review) as opposed to the other.  It is likely that in most situations there will be a substantial overlap between what the Court must examine for the purposes of a CO s.20(1) or a judicial review application, so that it should make no difference which procedure is used. 

120.  In theory, in judicial review applications, an applicant must show that a coroner was acting irrationally, as opposed to merely reaching a conclusion with which the Court disagrees.  But in practice the difference between the two bases for granting relief will probably not be significant in most inquest situations. 

121.  It is true (as Woolf J points out in Re Rapier at 30C) that the Court may have a greater reserve of powers at its disposal where proceedings are by judicial review as opposed to CO s.20(1)(b).  But again in practice in most situations it may not be necessary for the Court to have resort to its wider powers. 

122.  In this case, it does not seem to me that there is a real difference between the inquiry which I would have to conduct if a CO s.20(1)(b) application had been brought and the inquiry called for by a judicial review.  Consequently, I think that it would be wrong to dismiss this judicial review on the technical ground that the CO s.20(1)(b) avenue has not been tried.  It would instead be in keeping with the spirit of Civil Justice Reform for me, in the exercise of my discretion, to deal with the substance of the judicial review.  In so doing, I would in effect be dealing with the same issues as would have been canvassed in a corresponding CO s.20(1)(b) application.

IV.     CONCLUSION

123.  The judicial review application fails.  It is dismissed.

124.  There will be an Order Nisi that Rai pay the costs of the Commissioner and Hui, such costs to be taxed if not agreed with certificate for two counsel.  There will be no Order in relation to the Coroner’s costs.  As between Rai and her solicitors, costs are to be taxed in accordance with Legal Aid Regulations.