WONG KUI WAI V.W.B.G. Banks, Esq.Her Majesty's Coroner of Hong Kong

1992, No. MP 3476

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The Applicant is seeking an Order of Certiorari for each of the verdicts of death by unlawful killing returned in respect of the deaths of 5 co-employees who died in an accident which occurred on the 1st November 1991.

2. The Coroner's Inquest in question was held on the 17th, 18th and 19th October 1992 and conducted by the Respondent.

3. The accident occurred on board a barge moored at the Hung Hom pier. The Applicant who has no formal Engineering qualifications was in charge of a team of 6 men. They were attempting to start the diesel engine of a generator. Their efforts to do this by conventional means were unavailing. There was evidence that oxygen was then applied for this purpose. Very sadly there was a violent explosion killing 5 of the men and severely injuring the 6th man.

4. One of the important areas for consideration at the Inquest was the question of the Applicant's knowledge concerning the use of oxygen and the extent of the hazard arising from this.

5. The Respondent gave directions to the Jury and they entered the verdicts which are complained of. It is the directions which were given by the Respondent which give rise to the complaints made in this Judicial Review.

6. The Grounds upon which Relief is sought are as follows :-

(1) The Coroner failed to direct the jury properly on the test to be applied before they could be satisfied that there was manslaughter by gross negligence or recklessness.

(2) The verdict was irrational in that no reasonable jury, if properly directed, could have, upon the evidence, returned a verdict of death by unlawful killing.

(3) The Coroner failed to direct the jury upon Wong's state of mind when the evidence revealed that he was not the one who suggested the use of oxygen to start the internal combustion engine but only not objected to using the same which said failure constitutes an error in law.

(4) The Coroner failed to direct the jury in accordance with rule 23(c) of the Coroners Rules to ascertain the persons, if any, to be charged with manslaughter should the jury find that the deceased persons came by their death by manslaughter."

7. No complaint is made concerning the early part of the directions which were given. The problems arise from the directions given relating to the possibility of verdicts of unlawful killing being returned.

8. I think that it is necessary for me to include in this Judgment, all of the passage of the transcript on this.

" Turning now to the verdict of unlawful killing. If you are satisfied that these five deaths occurred due to gross negligence then, it would amount to manslaughter and therefore an unlawful killing. A verdict of unlawful killing is appropriate if you are sure, that is, beyond reasonable doubt, that at the time the five deceaseds died, there was something in the circumstances, that is, the use of oxygen, if you find that to be a fact, which, would have drawn the attention of an ordinary prudent individual in the position of the person or persons who caused the deceaseds' death. In other words, the direction to use oxygen for the purposes of starting the engine. Was there the possibility that this conduct was capable of causing some injuries even if not necessarily serious to the deceased, but the risk was not so slight, that an ordinary prudent individual would feel justified in treating it as negligible before the act or admission. In other words, before the oxygen was used which, caused the deceaseds' death, the person whose conduct caused the deceaseds' death either failed to give any thought to the possibility of there being any such risk or, having recognized that there was such a risk, nevertheless went on to take the risk. That would be the recklessness on the part of one or more persons on board the Kyowa Go No. 3 when it came to deciding to use the oxygen. Bear in mind that Mr. Wong Ku Wai gave evidence that he had worked for Gitanes, a specialist marine engineering company for six years and that he had had experience in marine engineering. If you then take into consideration the various codes and practices set out in appendix C to Mr. But's substantial report, a copy of which you have, all of which, refer to the dangers of using oxygen in starting up internal combustion engine, should, he as the person in charge, have known that the use of oxygen in attempting to start this engine could have led to serious injuries. It is an objective test; was it reasonably foreseeable for an ordinary prudent person, that the use of this oxygen in attempting to start the engine could have resulted in injury or was capable of causing serious harmful consequences. Nevertheless having foreseen those consequences or having ought to have foreseen the consequences, did he nevertheless, carry on, using the oxygen or, authorizing the use of the oxygen or, being a party to the use of the oxygen. If that was so, then that would be reckless. If he failed either to give any thought to the possibility of there being a risk or having recognized that there was such a risk, he nevertheless went on using the oxygen to attempt to start the engine. You have to accept that he authorized or was party to the use of the oxygen in his position as the senior man or the boss to find unlawful killing. That deals with the situation of death by unlawful killing."

9. It is clear that the Respondent used as a model the directions given in para. 20-49(7) of the 42nd Edition of Archbold. It is evident from R. v. Kong Cheuk Kwan 1986 82 Cr. App. R. 18 that the Privy Council has been highly critical of these directions which were then in the 2nd supplement of the 41st Edition.

10. Lord Roskill had this to say on p.21.

" The evidentiary difficulty which thus faced the Crown was only one of the difficulties to which the case gave rise at the trial. The very existence of the evidentiary difficulty made it even more important than usual that the trial judge should give to the jury a complete, clear and accurate direction as to the law which they were to apply to the facts as they found them to be. Their Lordships feel bound respectfully to say that, whilst feeling much sympathy for the learned judge, the direction which he gave as to the relevant law failed to satisfy those requirements in more ways than one. Their Lordships' sympathy for the learned judge arises because he was encouraged by counsel to adopt and did adopt as the basis for his direction a long passage which first made its appearance in paragraph 20.49 of the Second Supplement to Archbold's Criminal Pleading Evidence and Practice (1982) 41st Ed. and which purports to reflect the decisions of the House of Lords in CALDWELL (1981) 73 Cr. App. R. 13; [1982] A.C. 341 and LAWRENCE (1981) 73 Cr. App. R. 1; [1982] A.C. 510. The learned judge does not appear to have been invited to consider those two authorities in detail nor whether the law, as there clearly declared by the House of Lords, was correctly summarised in that paragraph. If that step had been taken, their Lordships do not doubt that the learned judge would have appreciated the errors in the offending passage which they regret to observe still appear in the Eighth Supplement to the 41st edition and which they hope will be revised in the near future. Their Lordships were told by counsel that it was to the Second Supplement that the attention of the learned judge was drawn at the trial.

The crucial passage in the learned judge's direction which, as its text shows, was written out and given to the jury to take with them when they retired, appears at pages 773/4 of the record. A comparison between its text and that of paragraph 20.49 in the Second Supplement of the 41st edition of Archbold clearly shows that that latter paragraph, numbered (7) in the supplement, was its source. The learned judge understandably added a few words by way of oral interposition to the text of that paragraph so as to adapt it to the facts of the instant case.

Their Lordships find it necessary to set out the text of the direction in full. The relevant part appears as one very long single sentence in the transcript but that very long single sentence requires to be broken down for the purpose of analysis: "the direction I give you, which I have had typed because I think this is not a trial involving test of memories so I am going to give you a copy of this before you retire, but I will read (it) out, this is the direction on the question of manslaughter by negligence. That is that the defendant and, of course, each of them considered separately, is guilty of manslaughter if the Crown have proved beyond reasonable doubt, firstly, that at the time he caused the deceased's death and, of course, you must be satisfied that each of the accused did cause the deceased's death, there was something in the circumstances which would have drawn the attention of an ordinary prudent individual and in this case you would consider the ordinary prudent deck officer or helmsman in the position of the defendant, to the possibility that his conduct was capable of causing some injury albeit not necessarily serious to the deceased including injury to health, which does not apply here, and that the risk was not so slight that an ordinary prudent individual would feel justified in treating it as negligible and that, secondly, before the act or omission which caused the deceased's death, the defendant either failed to give any thought to the possibility of there being any such risk or having recognised that there was such a risk he, nevertheless, went on to take the risk, or was guilty of such a high degree of negligence in the means that he adopted to avoid the risk as to go beyond a mere matter of compensation between subjects and showed in your opinion, such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.""

11. At p.24 he referred to Lord Diplock's speech in Lawrence 1981 73 Cr. App. R. 1 which contained the correct test.

" Their Lordships now move to LAWRENCE (1981) 73 Cr. App. R. 1; [1982] A.C. 510. There the House was dealing with death caused by reckless driving. The House unanimously accepted the view of the majority in R. v. CALDWELL (supra) as to the meaning of "reckless" and of "recklessness". It applied that ruling to the statutory offence of causing death by reckless driving and suggested a model direction in such cases.

Lord Diplock, on this occasion speaking for all the noble and learned Lords then present, said, after quoting from his speech in LAWRENCE, (at pp. 11 and 526 respectively):

"In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things: first, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it. It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves."

Their Lordships emphasise that in this passage Lord Diplock was speaking of an obvious and serious risk of causing physical injury created by the defendant He was not there concerned to deal with cases where the conduct complained of was of a defendant's reaction or lack of reaction to such a risk created by another person."

12. As can be seen there are two parts in this test. The first deals with the question whether there is an obvious risk. The second deals with the state of mind of the Accused. Either he has not given any thought to the possibility of there being such a risk or he has recognised that there was some risk involved and has decided to go on and do it.

13. What is very clear from this is that a subjective test is to be applied and not an objective one. This is borne out at p.353 of the speech of Lord Diplock in R. v. Caldwell 1982 AC 341.

My Lords, I see no warrant for making any such assumption in an Act whose declared purpose is to revise the then existing law as to offences of damage to property, not to perpetuate it. "Reckless" as used in the new statutory definition of the mens rea of these offenses is an ordinary English word. It had not by 1971 become a term of legal art with some more limited esoteric meaning than that which it bore in ordinary speech - a meaning which surely includes not only deciding to ignore a risk of harmful consequences resulting from one's acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious that there was.

If one is attaching labels, the latter state of mind is neither more nor less "subjective" than the first. But the label solves nothing. It is a statement of the obvious; mens rea is, by definition, a state of mind of the accused himself at the time he did the physical act that constitutes the actus reus of the offence; it cannot be the mental state of some non-existent, hypothetical person.

Nevertheless, to decide whether someone has been "reckless" as to whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as "reckless" in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual upon due consideration of the risk would not be deterred from treating it as negligible, could the accused be described as "reckless" in its ordinary sense if, having considered the risk, he decided to ignore it. (In this connection the gravity of the possible harmful consequences would be an important factor. To endanger life must be one of the most grave.) So to this extent, even if one ascribes to "reckless" only the restricted meaning, adopted by the Court of Appeal in Reg. v. Stephenson [1979] Q.B. 695 and Reg. v. Briggs (Note) [1977] 1 W.L.R. 605, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as "objective" in current legal jargon. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective."

14. I have no doubt in considering the directions given by the Respondent that they were fatally flawed. They proceeded upon a basis that the test to be adopted was an objective test and that if the Applicant should have had a knowledge of the potential danger of using oxygen in such circumstances it would be appropriate to enter a verdict of unlawful killing.

15. The situation is even more serious than that. It is now accepted by Mr. Kwok for the Respondent, although this was not originally apparent from the transcript accompanying the papers, that the Jury sought further directions from the Respondent by way of a question couched in these terms.

"Foreman

We have some questions : we want to know the definitions of accident and unlawful killing We know Wong didn't know danger, but if he was in position of manager, want to know whether he should judge and be held responsible for the consequences."

16. In response to this the Respondent gave the following further directions :-

" In respect of accident, a verdict of death by accident, if a person is going about day to day business and something quite unforeseen occurs which leads to death, that is an accident. Thus if somebody is walking along a street and a piece of a building fell off and hit the person on the heard thereby killing him, that would be an accident because, it is an unforeseeable situation. Misadventure on the other hand is a situation where one knows of certain risk involved, for example, crossing the road. There is a risk as one knows that there is traffic using the road. Although death is not expected when one crosses the road, nevertheless, if it occurs by way of a car running down a pedestrian then that would be misadventure. So if you look at it on the basis that accident is where something totally unexpected occurs, misadventure is a situation where one is aware of some risk such as the boxer in the boxing ring, the pedestrian in crossing the road, although one does not expect death to occur. Then that is misadventure. In so far as unlawful killing is concerning unlawful killing of course may involve murder, manslaughter, or infanticide but, in this particular situation we are talking of involuntary manslaughter through gross negligence. The situation is, if you accept Mr. Wong was the person in charge as the superintendent, then he has under a duty of care to those persons of whom be was in charge or superintended. Next there is clear evidence before you in the form of Mr.But, the Safety Officer's report, that the use of oxygen in starting internal combustion engines a diesel engine being an internal combustion engine, is dangerous. This is recognized by the Code of Safe Working Practices for Merchant Seamen under the Department of Trade of the United Kingdom which are recognized in a number of codes and safety practices all of which, are contained in the appendices to Mr. But's report. There is certainly clear evidence before you that the use of oxygen in endeavouring to start a diesel engine is highly dangerous. If you accept that evidence the next step is, in the lead up to Mr. Wong's appointment as either plant operations manager or, marine engineering manager, and that is a matter for you to decide. He had had according to his own evidence six years which Gitances which, is a specialist marine engineering company. According to his evidence he had had experience with marine engines and other types of diesel engines. If you are going to consider unlawful killing you don't need to make the distinction as to manslaughter or murder, unlawful killing is sufficient. You have to decide whether in his position as plant operations manager or marine engineeing manager, either, that he was aware of the dangers of using oxygen or, you have to consider should he have been aware of the danger of using oxygen. What is important, in your view on an objective test, should marine engineering managers or, plant operations managers, either, be aware of the dangers of using oxygen to start diesel engines or, should they has been aware of the danger of using oxygen. That is the first question that you have to satisfy yourself beyond reasonable doubt. Then you have to decide whether Mr. Wong as a supervisor ordered or, approved the use of oxygen for the purposes of starting the engine. Finally to return a verdict of unlawful killing you would have to accept that, either, he failed to give thought to the danger of using oxygen or, alternatively having given thought to the danger of using oxygen, nevertheless he carried on allowing or approving of the use of that oxygen to start the engine.

Summarizing, firstly, was he the person in charge or the superintendent? Secondly, did he order or approve the use of oxygen for the purposes of starting the engine? Next in his position, if you so decide, as superintendent or, person in charge, either, was he aware of the dangers of using oxygen or, on an objective test should he as a plant operations or marine engineering manager, have been aware of the dangers of using oxygen? If you find either of those then, did Mr. Wong fail to give thought to this, that is, to the use of oxygen or, having given though to the dangers of using oxygen, did he nevertheless proceed to approve or, allow the use of the oxygen? Does that answer your question?"

17. These further directions didn't in any way rectify the flaws in the original directions. Over and above this it is apparent from the question which was posed that the Jury had already accepted as a question of fact that the Applicant did not know of the dangers involved. Adopting what amounts to the correct subjective test referred to earlier the Respondent should at that point have directed the Jury that it was not then open to them to enter a finding of unlawful killing so far as the Applicant was concerned.

18. Mr. Kwok submitted that directions to a Jury should not be treated as exercises in jurisprudence and that there was no universal formula which would always be satisfactory. He called in aid part of the speech of Lord Hailsham in R. v. Lawrence at p.519.

" It has been said before, but obviously requires to be said again. The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case. The search for universally applicable definitions is often productive of more obscurity than light. A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge's note book. A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts."

19. While these observations are undoubtedly accurate, I do not think that they have any application to the present case. The misdirections which have been referred to go far beyond the situation envisaged by Lord Hailsham.

20. I am satisfied that this application must succeed and that the jury's verdicts must be quashed. I order accordingly.

21. Mr. Kwok informed me that Coroners have to give directions in a number of Inquests where possible negligence or manslaughter may be relevant. He said that some guidance might be of assistance to Coroners on the sort of directions which may be apposite. The following directions given by Watkins L.J. at p.136 of R. v. West London Coroner 1987 2 All ER 129 may be found to be helpful.

" I have much sympathy with the coroner, for he was dealing with a kind of manslaughter, namely unlawful killing by neglect, which is seldon met with. Moreover, save in the hands of an experienced judge, it is not a simple matter to direct a jury on. It is not surprising therefore to find that the coroner is criticised also for his less than correct and helpful references at various times to neglect, giving the impression here and there that just plan neglect would do.

Other criticisms have also been voiced as to this all-important direction, but I have, I think, said enough to indicate that the jury were gravely misdirected and cannot have been otherwise than confused by what they were told about this branch of the law and, of course, by what they had read from the notes which were handed in to them. This by itself must, it seems to me, inevitably cause the jury's verdict to be quashed. What the jury should have been told was that when considering manslaughter by neglect they would have to be satisfied on the evidence of these four ingredients of the offence: (1) that a police officer had the duty of regarding the health and welfare of Mikkelsen; (2) that he failed to do what in the circumstances he ought to have done for the health and welfare of Mikkelsen; (3) that his failure was a substantial cause of Mikkelsen's death; and (4) that in failing to act for the benefit of Mikkelsen's health and welfare he acted recklessly. It should be explained that to act recklessly means that there was an obvious and serious risk to the health and welfare of Mikkelsen to which that police officer, having regard to his duty, was indifferent or that, recognising that risk to be present, he deliberately chose to run the risk by doing nothing about it. It should be emphasised, however, that a failure to appreciate that there was such a risk would nor by itself be sufficient to amount to recklessness.

Further, the jury should have been directed that they could return a verdict of unlawful killing only if they could attribute those ingredients to a single police officer, whom they should on no account name or otherwise identity. In this context, the jury should consider the position of each officer in turn, following Mikkelsen's arrest, as to his duty, if any, to care for Mikkelsen's health and welfare and the opportunity given to him, having regard to the length of time he was with Mikkelsen and other relevant circumstances, to discharge it."

22. The Applicant will have his costs.