LEUNG SHUK LING AND OTHERS v. CORONER

CACV 485/2022, [2023] HKCA 904

On appeal from [2022] HKCFI 2915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 485 OF 2022

(ON APPEAL FROM HCMP NO. 773 OF 2022)

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J U D G M E N T

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Hon Poon CJHC (giving the judgment of the Court):

A.  Introduction

1.  On the night of 1 October 2012, at about 8:20 pm, the worst and deadliest maritime disaster in Hong Kong since 1971 struck when two passenger vessels, the Sea Smooth and the Lamma IV, collided off the north-west coasts of Lamma Island. After the collision, the Sea Smooth remained afloat and sailed to Yung Shue Wan but the Lamma IV sank rapidly within 118 seconds, killing 39 passengers including 8 young children. In addition to the ghastly dead toll, 97 other passengers were injured, some seriously. 5 rescuers were also injured in the subsequent search and rescue operation.

2.  The sudden and tragic death of the victims, which took place at what was supposedly to be a joyous time for celebrating the National Day, was and, sadly, remains the source of grief and anguish to whom they were dear, especially their families. Many still mourn their loved ones who perished on that fateful night. The society was also left in a great shock. The outpour of heartfelt sorrow and condolences across the city was immediate and universal. Grave concerns and even doubts about maritime safety in Hong Kong were naturally raised. Both the victims’ families and the community as a whole expected, and rightly so, that thorough investigations be conducted to find out what had happened; that those who were responsible be held accountable; and that appropriate measures be taken to prevent the occurrence of similar incidents in the future.

3.  One of such investigations, as one might reasonably expect for a major disaster of this scale, is a death inquest under the Coroners Ordinance (“the Ordinance”[1]). In fact, that was exactly the recommendation in the death investigation reports prepared by the police and submitted to the Coroner, Mr David Ko, in October 2020 (“the Death Investigation Reports”). However, by a decision dated 19 November 2020, the Coroner decided not to do so. Having regard to all the materials available, he concluded without holding an inquest under section 14 of the Ordinance that the victims were unlawfully killed.

4.  After the Coroner decided not to hold an inquest, ten family members of the victims on 26 January 2021 wrote to the then Secretary for Justice inviting her[2] to invoke section 16 of the Ordinance requiring him to hold an inquest. By a letter dated 9 March 2021, the Secretary replied, declining to do so because she concurred with the Coroner’s view.

5.  The applicants, who are the family of four victims and supported by the families of seventeen other victims, then applied to the Court of First Instance under section 20(1)(a) of the Ordinance for an order that a death inquest be held. By a judgment handed down on 24 November 2022,[3] Coleman J refused the application because he was not persuaded that the public interest would require a death inquest be held.

6.  Upon the 1^st and 2^nd applicants’ appeal, it now falls upon this Court to decide if it is in the public interest to hold a death inquest into the death of the two victims named in the Amended Notice of Appeal.[4] As it is very much a fact-sensitive question, it is necessary to set out the facts in greater detail.

B.  Background facts[5]

B1.  The vessels

7.  The Lamma IV was a twin screw passenger launch with two passenger decks, with an overall length of 27.21 metres and a gross tonnage of 184 tonnes. It was built by Cheoy Lee Shipyards Limited (“Cheoy Lee”) for The Hongkong Electric Company Limited (“HKEC”). Construction of the vessel took place between 1994 and 1996. In 1996, it was licensed by the Marine Department (“MD”) for sailing as a Class I, Category “A” Launch to carry 232 persons. It had since been operated by HKEC for the primary purpose of ferrying its employees from various locations to the Lamma Island Power Station.

8.  The Sea Smooth was a twin screw, twin-hulled catamaran with two passenger decks, with an overall length of 28.02 meters and a gross tonnage of 274 tonnes. It was also built by Cheoy Lee. It was first licensed by the MD in 2002 as a Class I, Category “A” Ferry Vessel to carry 389 persons. It was owned and operated by Islands Ferry Company Limited (“IFC”), a wholly owned subsidiary of Hong Kong and Kowloon Ferry Holdings Limited (“HKKF”) as a scheduled passenger running between Central Pier No.4 and Yung Shue Wan Pier, Lamma Island.

B2.  The collision

9.  At the time of the incident, the weather between Central and Lamma Island was fine. The sea was calm and the visibility in the vicinity of the location of collision was good, the Hong Kong Observatory recording a visibility of 9 km at 8 pm and 11 km at 9 pm. The Lamma IV had a crew of 3 with Mr Chow Chi Wai as coxswain and was carrying 124 passengers including 32 children, who were HKEC’s employees and their relatives and friends, on a voyage from the Lamma Island Power Station to Victoria Harbour to watch the National Day fireworks. The Sea Smooth was on a scheduled voyage from Central Pier, departing at about 8 pm, to Yung Shue Wan. She had a crew of 4 with Mr Lai Sai Ming as coxswain and was carrying 95 passengers.

10.  Shortly before 8:20 pm, the two vessels, travelling in opposite directions, were locked in a crossing manoeuvre involving a risk of head-on collision. The last minute attempts by the coxswains of the two vessels were too late and insufficient to avoid the collision. At about 8:20 pm, the port (left) side of the bow of the Sea Smooth crashed into the port side of the Main Deck cabin of the Lamma IV, crushing some of the passengers seated on the aft port side of that cabin. Many passengers were thrown to the floor or into seats or other solid objects in front of the seated or standing positions they occupied.

11.  The Sea Smooth made a large gash in one of Lamma IV’s under-deck compartments, namely, the third compartment from the stern, which was the Engine Room. The forward momentum of the Sea Smooth carried her along the side of the Lamma IV, lengthening the gash she had made on impact. She came to the bulkhead between the Engine Room and the next compartment to the stern, the Tank Room. The bulkhead at that point was reinforced by the Lamma IV’s hull which the Sea Smooth could not penetrate. The Sea Smooth slid along the hull and made a hole in the Tank Room.

12.  Sea water rapidly poured into the Engine Room and the Tank Room and then spread into the last compartment to the stern, the Steering Gear Compartment, since the bulkhead between the Tank Room and the Steering Gear Compartment was not watertight, there being no watertight door to an “access opening” in that bulkhead (“the Bulkhead”). The Lamma IV titled to the stern causing the flooding of the compartment next to the Engine Room to bow as well. The only buoyance that remained would have come from the first two compartments to the bow. With the rapid flooding, the Lamma IV sank in 118 seconds until she came to rest on the seabed with her bow at an acute angle of 70 degrees to the sea.

13.  As the angle to the horizontal at which the Lamma IV sank increased, passenger seating in the Upper Deck cabin became detached from the fiberglass/foam sandwich deck, dislodging passengers and throwing them together with the seats towards the aft end of the Upper Deck cabin. Some of the passengers were trapped as a result when the vessel sank, although some were able to free themselves and eventually escaped. No seats were dislodged on the Main Deck, which was constructed in aluminum.

14.  The Lamma IV sank so quickly that it was difficult for the passengers to help themselves by retrieving and donning a life jacket. For some who were able to find a life jacket, they found it difficult to put it on. Further, according to Table 1 of Part 2 of the Merchant Shipping (Local Vessels) (Safety and Survey) Regulation (“the 2007 Regulation”),[6] which came into force on 2 January 2007, Class I vessels, of which the Lamma IV was one, are required to carry life jackets for 5% of the persons on board.[7] But there was simply no child life jacket on board the Lamma IV on 1 October 2012. In the result, many of those who drowned were found not wearing life jackets.

15.  Almost all the 39 victims died from drowning. One died of massive traumatic injuries to his body, apparently caused in the collision itself. 29 victims were found inside the Upper Deck cabin.

B3.  The COI Report

16.  In the aftermath, the Chief Executive-in-Council swiftly appointed a Commission of Inquiry (“the COI”) on 22 October 2012,[8] with the following terms of reference:

“Inquire into the facts and circumstances leading to and surrounding the collision of the two vessels that took place near Lamma Island, Hong Kong on 1 October 2012:

(a) ascertain the causes of the incident and make appropriate findings thereof;

(b) consider and evaluate the general conditions of maritime safety concerning passenger vessels in Hong Kong and the adequacy or otherwise of the present system of control; and

(c) make recommendations on measures, if any, required for the prevention of the recurrence of similar incidents in future.”

The Chief Executive-in-Council further directed that the determination of any criminal or civil liability of any person shall be outside the terms of reference of the COI.[9] The COI was expected to submit its report to the Chief Executive within 6 months.

17.  The COI carried out a thorough investigation. It heard 113 witnesses, including the passengers and crew members on the two vessels, the officers of the MD who were involved in approving the construction of the Lamma IV, the licensing of the vessel to sail and annual inspections of the vessel, and five experts specializing in vessel construction, marine safety and other technical aspects relevant to the incident. The hearing lasted 50 days between December 2012 and March 2013.

18.  On 19 April 2013, the COI submitted its report to the Chief Executive (“the COI Report”). The COI Report was also made available to the public. It contained 186 pages with more than 100 pages of annexes. It made a host of findings in respect of four major topics:

(1)  the cause of the incident (Topic 1”);[10]

(2)  the circumstances in which the Lamma IV sank (“Topic 2”);[11]

(3)  why were so many lives lost (“Topic 3”);[12]

(4)  passenger vessels: general conditions of maritime safety – adequacy of the system of control (“Topic 4”).[13]

B3.1  Cause of the collision

19.  On Topic 1, the COI found that the collision was caused by the multiple errors committed by the two coxswains in navigating the vessels, including failures to keep a proper look-out, to make use of the radar on board, to take action to avoid collision, to alter course to starboard, and to make warnings/signals, in breach of numerous rules in the International Regulations for Preventing Collisions at Sea 1972.[14] The primary responsibility of the collision fell on the coxswain of the Sea Smooth.[15]

B3.2  Circumstances in which the Lamma IV sank

20.  On Topic 2, the COI identified the main cause of the rapid sinking of the vessel lied in the absence of a watertight Bulkhead.[16] It therefore considered lied in detail the evidence of all the circumstances relevant to the construction of the Lamma IV and its condition on 1 October 2012 in more or less a chronological order:[17]

(1)  the drafting of the design drawings by Naval-Consult Pte Ltd (“Naval-Consult”);

(2)  their receipt and use by Cheoy Lee, including their submission of the drawings to the MD;

(3)  the approval of those drawings by the MD;

(4)  the construction of the hull of the vessel in the Mainland, followed by the attachment of the superstructure and its fitting out at Cheoy Lee in Hong Kong;

(5)  the inspection of the hull by the MD;

(6)  the preparation of Damage and Stability Calculations in 1996, 1998 and 2005 by Cheoy Lee and the submission of those documents to the MD;

(7)  the receipt and processing of those Damage and Stability Calculations by the MD;

(8)  the approval by the MD of the addition of 8.25 tonnes of lead ballast in 1998;

(9)  the approval by the MD of the raising of the lead ballast inside the vessel in 2005.

After an extensive review of the evidence, the COI found that there was a litany of errors committed at almost every stage by many different people in the process of designing, constructing and surveying the Lamma IV.[18]

21.  The fundamental errors began with the drawings submitted by Cheoy Lee and approved by the MD for the construction of the Lamma IV in March 1995. Those drawings were prepared by Naval-Consult, a firm of naval architects in Singapore, engaged by Choey Lee for the project. The Bulkhead identified in the Profile and Deck drawing was watertight but the Sections and Bulkheads drawing depicted an Access Opening at the Bulkhead. Whether the Bulkhead was watertight or not materially affected how the Lamma IV was to be constructed; how the MD approved its construction; how the Damage Stability Calculations were prepared by Cheoy Lee and approved by the MD for the purpose of ensuring that the Lamma IV was safe to sail; and the basis of the subsequent annual inspections of the Lamma IV by the MD. Yet, there existed such a glaring and irreconcilable discrepancy in the drawings, which had remained unresolved throughout:

(1)  Mr John Lim, the director of Naval-Consult responsible for overseeing the draughtsman who prepared the drawings, Mr KC Tan, had inexplicably failed to pick it up at the time. He only testified before the COI that he now realized that Mr Tan had made a mistake in the drawings to describe the Bulkhead as watertight.

(2)  Mr Wong Chi Kin, who was a Surveyor of Ships in the Local Vessels Safety Section of the MD at the time, approved the drawings submitted by Cheoy Lee in May 1995. However, the COI found that he ought to have but failed to identify the discrepancy when he approved the drawings. He ought not to have approved the drawings without having required them to be revised to remove the discrepancy.

(3)  As the COI found, there were other occasions before approval was given by the MD for the Lamma IV to sail where such discrepancy on the drawings ought to have been identified by different personnel of Cheoy Lee and the MD.

22.  As it turned out, the Bulkhead was built non-watertight. Mr Ken Lo Ngok Yang, director of Choey Lee, testified that it was to be inferred that, given the absence of the fittings that would be used to attach a watertight door to the Bulkhead when the vessel was received from Wuzhou Shipyard, the contractor who built the hull, it was intended that no watertight door be fitted to the Bulkhead.[19]

23.  As noted by the Judge, it was not resolved by the COI whether it was the drawings (marking the Bulkhead as watertight) which went wrong, or whether it was the actual construction (making the Bulkhead non-watertight) which went wrong. The result was a vessel with a non-watertight Bulkhead but submitted to the MD for approval on a contrary basis.[20]

24.  After construction, three officers of the MD, namely, Mr Fung Wai Man, Mr Philip Yu Kick Chuen and Mr Ho Kai Tak, inspected the hull of the Lamma IV on 13 November 1995, 11 and 22 January 1996 respectively. The purpose of the inspections was to ensure that the hull was constructed in accordance with the approved drawings. Each of them had failed to note the absence of a watertight door fitted to the Access Opening at the Bulkhead despite various descriptions on the main Hull drawings that the Bulkhead was watertight.

25.  Damage Stability Calculation assesses a vessel’s ability to stay afloat upon sustaining damage to its hull. It is crucial to the obtaining of approval for sail. For the Lamma IV, the Damage Stability Calculation was first prepared by Mr Cheung Fook Chor, a ship draughtsman of Cheoy Lee, in March 1996. He found the discrepancy on the drawings on whether the Bulkhead was watertight confusing but proceeded to base his calculations on the assumption that it was. He relied on his superior Mr JA Leizaola, or the MD, to address the discrepancy.

26.  Further, according to the Instructions for the Survey of Launches and Ferry Vessels (1989),[21] a compartment of less than 10% of the length of the vessel is not to be considered separately but should be combined with the adjoining compartment for the purpose of a Damage Stability Calculation (“0.1L Rule”). Applying it to the Lamma IV, the Steering Gear Compartment and the Tank Room should be considered together for the Calculation. Although Mr Cheung was aware of the 0.1L Rule, he said he forgot to apply it due to negligence when he made the Calculation.

27.  Cheoy Lee submitted the Damage Stability Calculation prepared by Mr Cheung to the MD. It was processed by Mr Ho Kai Tak, Senior Ship Inspector and Mr Leung Wai Hok, Surveyor of Ship based on the same false assumption that the Bulkhead was watertight and their failure to take into account the application of the 0.1L Rule. Following the processing of the Damage Stability Calculation, a full certificate of Survey was issued in respect of the Lamma IV on 30 July 1996.

28.  The COI accepted the expert evidence of Dr Neville Anthony Armstrong[22] that in 1996 the error made by Mr Cheung in preparing and the MD officers’ in processing the Damage Stability Calculation was immaterial because the margin line of the Lamma IV was not immersed,[23] so that it would not materially affect the vessel’s safety to sail.

29.  In 1998, 8.25 tonnes of lead ballast were added to the Lamma IV, which dramatically changed its lightship particulars and necessitated the reassessment of the Damage Stability Calculation. But Mr Cheung prepared the Calculation making the same errors he did in 1996. And the MD officers, Mr Choi Chi Chuen, Surveyor of Ships and Mr Mak Yat Wai, Ship Inspector, processed the Calculation on the same erroneous basis. The COI found that had the officers required the Calculation to be done on a correct basis, they would have refused to allow the vessel to sail.[24]

30.  In 2005, HKEC requested “to raise the aft ballast about 10 inches height of original position” of the Lamma IV. As a result, the Damage Stability Calculation had to be revised. This time, it was done by Mr Kwok Hing Yin, a ship designer of Cheoy Lee, on the same erroneous basis. And once again, the officers in the MD concerned with the processing of that Calculation, Mr Chau To Yui, Ship Inspector and Mr Barry Liu Chiu Fai, Senior Surveyor of Ships, accepted it on the same flawed basis. Had Mr Liu requested the Calculation be done on a correct basis, he would have come to know that the margin line was immersed. He would have refused to allow the vessel to sail, the COI found.[25]

B3.3  Why so many died?

31.  Turning to Topic 3, the COI found, among other things, that the seats and benches attached to the Upper Deck cabin of the Lamma IV were not “properly secured” to the required standard,[26] although the MD had certified them as such in 1996.[27] The COI found that such failure played a contributing part in the loss of life amongst the passengers of the Lamma IV.[28]

32.  Moreover, the COI found that although there were sufficient adult life jackets on board, there was complexity in retrieving and donning them. Significantly, there was no children life jackets on board, in blatant breach of the 2007 Regulation, and contrary to the certificates issued on regular surveys by the MD officers from May 2011 onwards as having the required number of children life jackets, including the one carried out by Mr Wong Kam Ching, Ship Inspector, on 8 May 2012.[29]

33.  The COI drew attention to the issue of the absence of child life jackets on the Lamma IV at the very outset of the inquiry. However, it was not until the 2^nd supplemental witness statement of Mr Wong Wing Chuen, Senior Surveyor of Ships, dated 8 February 2013 that it was revealed for the first time that after the 2007 Regulation came into effect in January 2008, a “policy” was adopted by the MD under which the law was not applied to existing vessels. Not surprisingly, the COI pressed for more information, including why the COI had not received any evidence from anyone of a higher rank than Mr Wong, in particular, “the top of the MD as to what its position was”. Senior counsel for the MD could only said, “No, because that correctly reflects the position.” When asked why the COI had not been provided with “anything in writing that documents this policy”, senior counsel said that there was simply no such document and that nothing was documented in writing to inform the public of the position taken by the MD.[30]

34.  As expected, the COI heavily criticized the MD for conducting itself in respect of the non-enforcement of the 2007 Regulation.[31] But it did not go any further than what the evidence had presented itself on this issue.

35.  In the subsequent criminal prosecution against the then serving assistant director of the MD, Mr So Ping-chi, it was revealed that it was his decision not to enforce the 2007 Regulation. Mr So was convicted of the offence of misconduct in public office in June 2016 and was sentenced to 16 months’ imprisonment, which was reduced to 4½ months on appeal in November 2018.[32]

B3.4  Maritime safety

36.  On Topic 4, in evaluating maritime safety of passenger vessels, the COI considered the evidence of Dr Armstrong and another expert, Captain Nigel R Pryke, and five officers of the MD. It focused on whether the then system enforced by the MD was adequate to ensure safety of passenger vessels, considering aspects pertaining to the approval of plans and drawings for construction of vessels, the initial survey, the final inspection and the periodic surveys conducted by the MD, the required standards of life-saving equipment on board, including child life jackets, and others measures and equipment.[33]

B3.5  Recommendations

37.  Finally, the COI made 13 detailed recommendations to the Administration in order to prevent the recurrence of similar incidents:[34]

“(1) The Marine Department should check and verify the standard of watertight subdivision of all vessels permitted to carry more than 100 passengers first certified before 1 January 2007.

(2) The same safety requirements should apply to ferries and launches carrying more than 100 passengers. Operators of such vessels should be required to implement a safety management system approved by the Marine Department.

(3) All ferries and launches permitted to carry more than 12 passengers should be required to carry a VHF radio and be equipped with rocket parachute flares in the wheelhouse, and vessels permitted to carry more than 100 passengers be equipped with AIS, collision avoidance radar, a VHF radio and rocket parachute flares, the latter to be carried in the wheelhouse.

(4) All coxswains of vessels permitted to carry more than 100 passengers should have a basic medical examination and eyesight test at intervals not exceeding five years and all seamen required to keep a look-out should have an eyesight test at the same intervals.

(5) All vessels permitted to carry more than 100 passengers:

• should have a look-out on the bridge, in addition to the coxswain, during the hours of darkness and in reduced visibility and high speed craft should have a look-out on the bridge at all times;

• should have a muster list, so that every member of the crew is aware of his duties in the event of emergency.

(6) Sufficient child lifejackets should be carried for every child on board all classes of vessels and consideration should be given to the provision of infant lifejackets.

(7) The Marine Department should –

(i) revise the format of the Certificate of Survey to state only the statutory minimum requirement, and substitute the use of “＊” with stipulated numbers;

(ii) require ship owners to print the name of the vessel on each of the lifejackets on board;

(iii) revise the practice of checking of lifejackets to ensure that lifejackets are properly stowed in easily accessible locations and that they are actually on board;

(iv) require ship owners to provide sufficient signs designating the locations of lifejackets;

(v) require demonstration (by crew or through graphic display) of how lifejackets are donned; if possible, installation of video facilities for safety briefing and demonstration purposes; and

(vi) require owners and operators that all piers used to embark and disembark passengers broadcast via video, or put up posters, demonstrating the donning of lifejackets.

(8) High speed crafts built before 2007 should be required to have an operating manual, a route operating manual and a training manual and their coxswains be required to attend a high speed radar simulator course.

(9) The Code of Practice should be amended to provide for an empirical value or standard against which the attachment of seats to the deck is to be judged, which value or standard should take into consideration their loading not only during a normal voyage but must also cater to excessive stern trim in the course of a marine casualty.

(10) The Marine Department should require its Ship Surveyors and Inspectors to document fully in writing the reasons for any changes to the licensing conditions of vessels and communicate them in writing to their superior officers and the respective owners/operators. It should do so to ensure that its procedures are resistant to corrupt practices and to strengthen its management monitoring.

(11) The Marine Department should stipulate the division of responsibilities in the approval of its plans and the survey of a vessel by its officers. Certificates of Survey/Certificates of Inspection should contain a statement signed by the surveyor that the vessel has been built in accordance with the approved plans.

(12) The Marine Department should require watertight doors be fitted with alarms to the wheelhouse to indicate whether they are open or closed and that they be appropriately marked.

(13) We agree with and accept the principle set out in the Code of the International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (Casualty Investigation Code), IMO resolution MSC. 255(84), that the MAISSPB be independent of the Marine Department. However, we consider that the establishment of a wholly independent accident investigation board may not be entirely appropriate for the scale of activities in Hong Kong. Therefore, we recommend that an independent qualified professional be appointed specifically to take charge of marine accident investigation, as head of MAISSPB in the Marine Department, who shall report directly to the Director of Marine. This would enable the MAISSPB to benefit from the support and expertise in the Marine Department while maintaining its impartiality.”

B4.  THB’s response

B4.1  Internal investigation

38.  As the COI Report revealed possible maladministration and dereliction of duty by some MD officers in connection with the Lamma IV, the Transport and Housing Bureau (“THB”) conducted an internal investigation, which was concluded in March 2014. Since it is the government policy not to disclose report on internal investigation to the public, only a summary of the THB’s internal investigation report was published on 28 April 2014. According to that summary, 17 MD officers, 13 serving and 4 retired, were prima facie found to have misconducted themselves. Disciplinary actions were subsequently taken against the 13 serving officers but pursuant to the same policy, the details of the disciplinary actions were never made public, despite repeated calls by the victims’ families and one Legislative Councillor who assisted them.

B4.2  Steering Committee on Systemic Reform

39.  The THB also set up the Steering Committee on Systemic Reform of the Marine Department in May 2013 to advise and steer the Director of Marine to undertake a comprehensive review and reform of the MD. The Steering Committee focused on three areas of the work of the MD, namely, (1) the regulation of passenger safety and local vessel; (2) the MD’s business processes and operational procedures; and (3) the MD’s manpower strategy and training matters. In April 2016, the Steering Committee published its final report.

B5.  Criminal proceedings

40.  Criminal proceedings also ensued after the COI Report. The two coxswains of the Sea Smooth and the Lamma IV were prosecuted.[35] The former was convicted of 39 counts of manslaughter and one count of endangering the safety of others at sea; the latter, one count of endangering the safety of others at sea. On 16 February 2015, they were sentenced to 8 years’ imprisonment and 9 months’ imprisonment respectively.

41.  In addition to Mr So Ping-chi, Mr Wong Kam Ching was in 2016 prosecuted and convicted of perjury for giving false evidence before the COI that he remembered counting children life jackets on the Lamma IV when he inspected the vessel on 8 May 2012 and was sentenced to 15 months’ imprisonment.[36]

B6.  The Death Investigation Reports

42.  Upon the conclusion of all criminal proceedings, the police finalized the Death Investigation Reports after interviewing 91 witnesses, and submitted them to the Coroner in October 2020.

B6.1  Fresh materials

43.  The Death Investigation Reports highlighted some fresh materials which the police gathered in their investigation.

44.  As noted above, whether the Bulkhead was to be built by Cheoy Lee as watertight remained unresolved by the COI. To recap, Mr John Lim, the director of Naval-Consult, who supervised the draughtsman, Mr KC Tan, said Mr Tan wrongly described the Bulkhead as watertight on the drawings. Mr Ken Lo, a director of Cheoy Lee, inferred that no watertight door was to be fitted to the Bulkhead. Mr Cheung Fook Chor who did the Damage Stability Calculations found the drawings as to whether the Bulkhead was to be watertight confusing but left it to his superior, Mr JA Leizaola or the MD.

45.  In their investigation, the police took a witness statement from Mr Tan.[37] Contrary to Mr Lim’s assertion, Mr Tan said he had no idea who made the handwritten remarks on the drawings stating that the Bulkhead was watertight. The drawings prepared by him were submitted to Mr Lim for checking and approval, and Mr Lim would ask him to make corrections as and if needed.

46.  Most relevantly, the police obtained a fax issued by Wuzhou Shipyard, the contractor engaged by Cheoy Lee to construct the hull of the Lamma IV, addressed to Mr Fung of Cheoy Lee, and another fax issued by Vanzon (Sino-Hong Kong) Company to Wuzhou Shipyard, both dated 21 June 1995 (“the WS Fax” and “the Vanzon Fax” respectively). Vanzon featured because its employee, Mr Cheng, [38] was approached by Cheoy Lee in 1994 for a quotation for the construction of the hull of an aluminum alloy vessel. Mr Cheng then obtained a quotation from Wuzhou Shipyard which he forwarded to Cheoy Lee.

47.  In the WS Fax, Wuzhou Shipyard stated that:

“Besides, there is a watertight door in [the Bulkhead]. That being the aft peak bulkhead, watertight test has to be conducted. Accordingly, our shipyard will open a relatively small manhole so that workers can go into the stern. When work is completed, this manhole will be sealed for watertight test. A door is to be fitted by your shipyard when it returns to Hong Kong.”

Mr Fung[39] confirmed that he was the recipient of the WS Fax. He further stated that the hole opened at the Bulkhead was to allow workers to go into the compartment at the stern to work and would be sealed up after work.

48.  Mr Cheng confirmed that it was he who wrote the Vanzon Fax after taking instructions from Cheoy Lee. He stated in the Fax:

“2. Watertight door in the [Bulkhead]: It is agreed that a small hole be opened for welding work to be carried out. It will be sealed after work is completed. A watertight test shall be conducted using air pressure. Please suggest pressure level.”

49.  The applicants’ case is that in flat contradiction to Mr Ken Lo’s evidence before the COI, the WS Fax, the Vanzon Fax and the evidence of Mr Fung and Mr Cheng strongly suggest that Cheoy Lee was well aware that the Bulkhead was designed to be watertight as it was supposed to be sealed up after work for a water pressure test to be conducted.

50.  Further, the police took a statement from Mr JA Leizaola in 2018 under mutual legal assistance. Mr Leizaola clarified that he was only in charge of calculating ship costs and administrative matters in Cheoy Lee and not an approved vessel designer. He denied that he had any role to play in the design of the Lamma IV, let alone involved in its Damage Stability Calculations, as alleged by Mr Cheung Fook Chor.

B6.2  Other relevant matters

51.  The Death Investigation Reports further referred to two other matters that warrant attention.

52.  First, the police drew attention to the evidence of the Chairman of the Hong Kong & Kowloon Trades Union Council before the COI that seamen employed by IFC worked 24 hours per shift and some complained about insufficient time for rest and refreshment. The police tried to contact several union representatives to ask if they could testify to those matters but none was forthcoming. The Death Investigation Reports went on to state:

“39. Request to interview the Managing Director of [HKKF], Mr NG, has been declined. However, from his participation in the Local Vessels Advisory Committee, it is believed that he has information to give regarding the corporate attitude towards working hours and scheduled breaks of crew operating fast ferries in the harbour.

40. Similarly, requests to interview the Operations Manager of [HKKF], Ms LAM, has been declined. She is the representative of HKKF who signed employment contracts with the crew. It is believed that she has information to give regarding the employment conditions such as working hours and scheduled breaks, as well as training and welfare of the crew.

41. Requests to interview the Chief Coxswain of HKKF, Mr LAM, have also been declined. It is believed that he has information to give regarding the working conditions of crew on 24-hour shifts, the hazards or precautions for each ferry route, as well as any complaints regarding working hours, navigational equipment, and sailing conditions.”

53.  Second, there was an additional error in relation to the process of designing, constructing and surveying the Lamma IV revealed by expert evidence but not covered by the COI.

54.  Coaming is the vertical surface surrounding a compartment of a vessel designed to prevent water ingress therein. According to an expert report dated 23 January 2013 prepared by Mr York, [40] Marine Surveyor, dealing with stability calculations of the Lamma IV:

“1.7 Down flooding openings have been located at the location of the non-watertight doors into the main engine room (port and starboard) and the crew compartment (port side only). The adopted coaming height of the doors was measured during the November 2012 survey and was found to be 300mm for the engine room access doors (port and starboard), and 190 mm for the access down to the crew compartment (port side only).

1.8 The coaming height into the crew compartment is 40 mm lower than the minimum required height of 230 mm as stated in the current Code of Practice for existing vessels.

1.9 The GENERAL ARRANGEMENT Drawing NC-391-1 shows comments from [the MD] in 1995 stating in point 4:

‘All air pipes and access hatches that lead down from main deck to be of 300mm coaming height’

The effect of the lower coaming on this door is to allow water to flood into the crew compartment at lesser values of sinkage and heel in both intact and damaged conditions when compared with a door having a 300mm coaming.”

55.  Based on Mr York’s findings, the police engaged another naval architect, Mr Vart,[41] to review the drawings of the Lamma IV. In the preliminary report dated 23 April 2014, Mr Vart was specifically asked:

(1)  Question 2: For the survey of “Hull Construction (Internal)”, did it include inspection of bulkheads and coaming?

(2)  Question 4A: Did the coaming height meet the required standard?

(3)  Question 4B: If the standard was not met, should the surveyor have noticed the non-compliance and what should he have done when he found such non-compliance?

Mr Vart opined:[42]

(1)  On Question 2: “Similarly, the modification noted on drawing NC-391-1 that required the height of the coamings on doors and access hatches leading down from the main deck to be 300mm should have been checked by the surveyor conducting the first survey.”

(2)  On Question 4A: “No, the coaming height requirement was clearly indicated on the approved General Arrangement drawing, NC-391-1. Printed note 4 affixed to that drawing states …”

(3)  On Question 4B: “Yes, the attending surveyor should have been fully familiar with the 300mm coaming height rule; furthermore, it was specifically mentioned on the approval general arrangement drawing. The surveyor conducting the first survey should have checked this dimension on all coamings.”

56.  Since the COI did not deal with this coaming issue, the experts had not taken it into account when analyzing why the Lamma IV sank so quickly. The applicants’ case is that this non-compliance of the coaming height contributed to the sinking of the Lamma IV and thus relates to the circumstances connected with the deaths of the victims.

B6.3  Recommendation

57.  The Death Investigation Reports concluded:

“42. While the trial of the two coxswains dealt extensively and conclusively with the circumstances surrounding and leading up to the collision, and the COI shed light upon the physical condition of the LAMMA IV and how it was designed, built and approved for sailing, in-depth investigation into the [MD], [Choey Lee], [HKE], and [HKKF] was completed only after the COI. The regulatory body namely the [MD], as well as the employers of the crew involved in this incident, have never been examined by any public tribunal of fact.

43. It is recommended that Death Inquest be held to ascertain the cause of death of the deceased.”

C.  The decisions below

C1.  The Coroner’s decision

58.  After taking into account of the COI Report, the judgments in the criminal proceedings referred to above, autopsy reports and the Death Investigation Reports, the Coroner considered that the functions of the COI and the purpose of a death inquest had completely overlapped; that the recommendations made by the COI, with which he agreed, had already covered all the situations which could prevent the occurrence of similar incidents; and that the additional evidence collected after the COI Report and the conclusion of the criminal proceedings did not assist or change the investigation of the cause of, the circumstances connected with, and the prevention of the deaths. He fully accepted the COI Report and the criminal judgments and concluded without holding an inquest under section 14 of the Ordinance that the victims were unlawfully killed.

C2.  The Judge’s decision

59.  In mounting the application before the Judge, the applicants heavily relied on the new and further materials as summarized at Part B6.1 and 6.2 above. In addition to the lower coaming found on the Lamma IV, the applicants said that there existed one more reason why it sank so quickly which had not been fully explored in the COI Report:

(1)  The bow of the port hull of the Sea Smooth was the first point of contact with the Lamma IV at the time of the collision. The stem bar and keelson of the Sea Smooth were responsible for most of the damage to the hull of the Lamma IV.

(2)  The stem bar and keelson of the Sea Smooth were manufactured from hardwood, 220 x 50 mm in size, covered with several layers of laminate and embedded into the surrounding hull structure; whereas the hull of the Lamma IV was constructed of aluminum alloy, a material usually considered to be stronger than the materials used on the stem bar and keelson of the Sea Smooth.

(3)  Dr Armstrong opined that the stem bar and keelson are very strong components of many ship designs. The reason why the stem bar and keelson of the Sea Smooth could penetrate the aluminum alloy of the hull of the Lamma IV was the kinetic energy of the former at the time of impact resulting from its high speed.

(4)  Dr Cheng Yuk Ki, a forensic scientist of the Government Laboratory, who had inspected the vessels and prepared an expert report for the COI, noted that the bow structure of the starboard hull of the Sea Smooth was found to have been protected by an additional L-shaped metal plating nearing the waterline, measuring 1.6 metres high by 0.8 metres wide and having a pointed protrusion at its corner. When he examined the fibreboard found in the gash of the Lamma IV, which originated from the bow of the port hull of the Sea Smooth, Dr Cheng found an imprint, which partially matched with the L-shaped metal plating on the bow of the starboard hull of the Sea Smooth. This indicates that an L-shaped metal plating was also installed on the port hull of the Sea Smooth (“the Port Hull Bow Plating”) at the material time, although it was not recovered. Dr Cheng noted that according to the information provided by the police, the Port Hull Bow Plating was reportedly dismantled from maintenance and no substitute was reportedly installed at the time of the incident.

(5)  Dr Armstrong agreed that it was reasonable to assume that the Port Hull Bow Plating was fitted to the Sea Smooth, which was of itself a very strong structure closely fitted to the vessel forefoot by screws. He opined that the Port Hull Bow Plating had played little or no part in the overall damage scenario but qualified his view by saying that whether it played any part in the damage resulting from the collision was not known because he had not seen any part of it.

60.  The applicants pointed out that the L-shaped metal plating on the bow of the starboard hull of the Sea Smooth remained intact after the collision. They queried the assertion that the Port Hull Bow Plating was coincidentally dismantled for maintenance. Their case is that the initial installation of the Port Hull Bow Plating was an unauthorized alteration which warranted in-depth investigation as to whether it was lawful and/or had been examined and approved by the MD. This issue was never thoroughly examined and discussed in the COI Report.

61.  Further, the applicants sought to seek information from the MD on this issue. The Legislative Councillor who assisted them requested the MD to produce the Certificate of Survey of the Sea Smooth prior to the collision (“the Certificate”). By a letter dated 1 August 2018, while confirming the issuance of the Certificate, the MD declined the request on the grounds of ongoing litigation and that it was third party information. The Certificate was not attached to the Death Investigation Reports either. The applicants’ case is that should a death inquest be held, the Certificate would be made available for examination and would shed light on whether the Sea Smooth was properly inspected by the MD before the collision, which had never been dealt with in the COI Report. It would provide more information on the causes of the collision.

62.  Mr Tam, for the applicants,[43] took two main points:

(1)  The new and further evidence relied on by the applicants shed more light on the broad circumstances in which the victims met their unfortunate death. The 17 MD officers who were concluded by the THB’s internal investigation to have misconducted themselves had not been subject to the scrutiny by a public tribunal of fact, as required for the Government to discharge its procedural obligations under article 2 of the Hong Kong Bill of Rights Ordinance[44] and article 28 of the Basic Law (“BOR 2” and BL 28” respectively).

(2)  The new and further evidence had also revealed further systemic deficiencies in relation to the working practices and employment conditions of seafarers, which were not included in the 13 recommendations made by the COI.

63.  After referring to the new and further evidence, the Judge said:

“80. I accept that aspects pertaining to the bulkhead undoubtedly fall within the circumstances in which persons died in this incident, thus coming within the phrase “how … the person came by his death” under section 27(b) or section 9(2)(b). But those aspects were covered in the COI. What the Applicants seek to do via a death inquest is to have those aspects further investigated in light of the new evidence, with the view to finding out as many details as possible regarding what went wrong or who made mistakes.

81. The question arises as to how much detail concerning the circumstances of a death must be investigated and determined. In the Imelda Quinto Abong case, at §37, Mimmie Chan J endorsed the view expressed by the authors of Jervis on the Office and Duties of Coroners 14^th Ed at §§1-18 to 1-23 that an inquest is to seek out and record as many of the facts concerning the death as public interest may require. I agree. Therefore, it seems to me that the ultimate yardstick is the public interest.

82. The COI had revealed that due to the failures of the various parties involved in the construction of the vessel, the bulkhead was not made watertight. The further evidence since obtained might conceivably go to establish exactly which company, among all those involved in the construction process, or which employee within the same company, could be held responsible for the mistakes made. The question is how those further factual details, assuming they could be unearthed via the proposed death inquest, could or would better serve the public interest.

83. It is not unfair to say that the means by which and circumstances in which the Deceased met their deaths had been substantively covered in the COI and in the criminal proceedings. The COI examined not only the immediate cause – the collision – but also the ‘structural’ causes rooted in the design and equipment on board of the vessel which could traced back to as far as 1994 when the vessel was designed and constructed. The facts revealed by the COI – and to some extent by the criminal proceedings – are sufficient to enable the conclusion (as was reached by the Coroner) that the Deceased died by unlawful killing and the medical cause was drowning. I think the “how” has been established, including as to the broad circumstances.

84. It is understandable that family members would naturally want to trace every detail of how their loved ones met their death. But the public interest does not require the unravelling of every possible factual detail through a death inquest. I am not satisfied that public interest would require a death inquest to go into those additional factual details, which Mr Tam said would be revealed by examining the new evidence.

85. I am not persuaded that public interest would require the investigation into the MD officers by a death inquest:

(1) Some of the MD officers were indeed examined by an independent public tribunal of fact, i.e. the COI. One of the officers was indeed found to have committed perjury in and was subsequently prosecuted for perjury in criminal proceedings. The list of witnesses of the COI include dozens of MD officers which had dealt with the Lamma IV in the past or who were involved in enforcing the applicable maritime safety regulations.

(2) The COI did identify the mistakes made by MD as a department, although it might not have pinpointed on each occasion as to which individual officer from MD had committed which mistake.

(3) In essence, the Applicants want to know more about the errors made by MD, down to the level of being able to pinpoint which individual officers were responsible for which mistakes.

(4) But I am not satisfied that public interest would require that level of detail, in view of what had already been revealed by the COI and the criminal proceedings.”

64.  As to further systemic deficiencies which the COI did not give recommendations on, the Judge said:

“90. The key facts relating to long shifts were already covered in the COI, with its harmful effects commented on by the experts. Whilst the suggested area of potential recommendation appears to be a sensible one, I suspect it is almost always possible to come up with further improvements or recommendations to add onto the fairly comprehensive and long list generated by the COI with the assistance of experts. I do not think that the public interest requires the holding of an inquest for the purpose of ascertaining if the recommendation as suggested by Counsel could or should be made.”

65.  In consequence, the Judge held that the applicants had not met the burden to present sufficient evidence to persuade the court why an inquest ought to be held. He considered that a death inquest ought not to be held.

D.  The applicants’ contentions

66.  Before us, the applicants raised a total of five grounds of appeal, which boil down to three main complaints:

(1)  The Judge erred in concluding that the broad circumstances of how the victims came by their deaths had been established. The Judge further erred in holding that the COI and the criminal prosecutions had satisfied all the purposes of a death inquest and were sufficient to enable the conclusion that the victims died by unlawful killing.

(2)  The Judge failed to give due weight to the compelling factors public interest would be served should an inquest be held.

(3)  The Judge erred in holding that the public interest did not require an inquest to be held to consider whether recommendations should be made to prevent the recurrence of similar fatalities.

67.  In advancing the applicants’ case of the first complaint, Mr Tam submitted that while the Judge was correct in accepting that the aspect pertaining to the Bulkhead undoubtedly fell within the circumstances in which the victims died, and an inquest was to seek out and record as many of the facts concerning the death as public interest may require, he erred in holding that the COI and the criminal proceedings were sufficient to enable the conclusion that the victims died by unlawful killing and the medical cause of drowning be drawn; and that the broad circumstances of death had been fully established. For it is not a pre-condition for holding a death inquest to show a different verdict would be returned. Even when significant fresh evidence may serve to confirm the correctness of the earlier verdict, it may nevertheless be desirable for the full extent of the evidence which tends to confirm the correctness of the verdict to be publicly revealed: AG v HM Coroner of South Yorkshire (West) [2012] EWHC 3783 (Admin) at [10]. Further, a fresh inquest ought to be held if the fresh evidence that emerged may have aggravated the level of culpability of the parties which had already been identified as at fault: ibid, at [20].

68.  Mr Tam next complained that the Judge erred in deciding that public interest did not require the unravelling of every possible factual detail through a death inquest and public interest would not require a death inquest to go into those additional factual details in order to establish exactly which company among all those involved in the construction process of the Lamma IV, or which employee within the same company/department, could be held responsible for the mistakes made. Referring to the new and further evidence, Mr Tam submitted that given the publicity involved, it is obviously in the public interest for the interested parties and the general public to know who or which company should be responsible for the deaths of the victims. Further, it is in the public interest to know the additional details concerning the issues whether the Bulkhead was designed to be watertight and whether Cheoy Lee was aware of it. It is more than mere pinpointing which company or which person in a particular company should be ultimately responsible. It goes into the question whether there is another fundamental error which led to Lamma IV sinking so quickly, which in turn is part of the broad circumstances connected with the deaths of the victims. It must be in the public interest to know the complete, not just partial, broad circumstances in which the persons came by their deaths, counsel stressed.

69.  Mr Tam then argued that the Judge erred in holding that public interest would not require the investigation into the MD officers by a death inquest because the MD had already been identified as mistaken as a department and some MD officers were examined by an independent public tribunal of fact, that is, the COI. In support, Mr Tam referred to the apparent inconsistency on the issue of periodic surveys of the door of the watertight compartment and the watertight bulkhead of the Lamma IV conducted by the MD between 1996 and 2010 revealed by the Death Investigation Reports. According to one responsible MD officer, the inspection was to be done every 2 years whereas another responsible officer said it was to be done every year. The inconsistency suggests that there was different understanding by the MD officers as to when the watertight appliances should be inspected, and it carried on over the years, which in turn implies a systemic deficiency on the periodic surveys.

70.  Mr Tam argued that the internal investigation by the THB could not substitute an inquest because of, among other things, its private nature: R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653, at [37] and [51]. As revealed in the THB Summary, the extent of misconduct by the MD officers might go well beyond the stages of vetting and approval of plans and Damage Stability Calculations and the implementation of the 2007 Regulation, it is in the public interest to hold an inquest to examine what went wrong in the handling of the vessels by the MD, especially the periodic surveys conducted.

71.  Mr Tam added that the implication of systemic deficiencies on the periodic surveys is compounded by the fact that there are other aspects of the two vessels that were below standard, that is, the lower coaming of the Lamma IV and the suspected unauthorized structural alteration of the hull of the Sea Smooth, namely the Port Hull Bow Plating. He complained that while accepting that these two matters fell into the broad circumstances of how the victims died, the Judge failed to explain why the public interest would not require further inquiry on them when there was evidence suggesting that they were part of the reasons why the Lamma IV sank so quickly.

72.  Finally, Mr Tam pointed out that the criminal proceedings against the two coxswains and the two MD officers did not cover the new areas of inquiry.

73.  Turning to the second main complaint, Mr Tam referred to the various public interest factors listed in Jervis on the Office and Duties of Coroners, 14^th Edition, at [1.26]. He then took a number of points:

(1)  The effect of a full and open investigation would heighten public awareness that conduct leading to a death would lead to public scrutiny. It is a strong deterrence to persons who may otherwise be tempted to exercise insufficient care.

(2)  A full and open investigation is particularly warranted when the deceased’s right to life may have been violated and it appears that state agents may be in some way implicated: R (Middleton) v West Somerset Coroner [2004] 2 AC 182, at [3]; Jordan v United Kingdom (2003) 37 EHRR 2, at [105]. That principle is equally applicable even when the deaths are not directly caused by use of force by state agents: R (Amin), at [21].

(3)  Because of the time constraint, it could not be expected that all the relevant facts could be covered by the COI. The new and further evidence suggested that some employees of Choey Lee might have shifted the blame to someone who could not be reached during the COI hearing. This falls squarely into the situation that an inquest seeks to guard against and one where the public interest lies.

(4)  The Judge undermined the significance of the installation of the Port Hull Bow Plating. There was evidence to raise a suspicion that there was deliberate concealment to weasel out responsibility by informing the police that it had been dismantled for maintenance. An inquest would serve the public interest to allay such suspicion.

74.  Lastly, Mr Tam submitted that the representation of the victims’ families in the investigation should form part of the Judge’s analysis as to whether public interest requires an inquest to be held. He relied on some overseas and local first instance authorities, such as Sony Rai v Coroner [2011] 2 HKLRD 245; Imelda Quinto Abong v Coroner [2021] 2 HKLRD 607 to support the propositions that the right to life under BL 28 and BOR 2 conferred procedural obligation on the Coroner to empower an inquest, when appropriate, to investigate the broad circumstances of how the person came by his death; and that the right to participation by the next-of-kin of the deceased, being the other aspect of procedural obligation under the right to life, is applicable in Hong Kong.

75.  On the third main complaint, Mr Tam acknowledged that pursuant to Secretary for Justice v William Ng Esq [2011] 1 HKLRD 283, at [61], the applicants should identify at least broadly the areas in which useful recommendations might be made and to point to some evidential basis for suggesting that the Coroner or jury would be likely to make such recommendations. He therefore made submissions on the areas of usual recommendations before the Judge concerning the issue of working practices of seafarers. While the Judge rightly accepted that they were sensible, he erred in holding that “it is almost always possible to come up with further improvements or recommendations to add onto the fairly comprehensive and long list generated by the COI with the assistance of experts”. It is because the Judge failed to place sufficient weight on (1) the issue of long working hours of seafarers had never been remedied; (2) the MD’s attempt to review the shift arrangement was strenuously opposed by the ferry companies; and (3) the uncooperative attitude adopted by the management of ferry companies in response to the police investigation in the course of preparing the Death Investigation Reports, counsel reasoned.

76.  Accordingly, Mr Tam submitted that viewed as a whole, the evidence suggested that the shift arrangements of seafarers is a deep-rooted problem in the industry requiring rigorous scrutiny. It is therefore in the public interest to hold an inquest to see if recommendations could or should be made on the long working hours of seafarers, when the 13 recommendations by the COI did not cover it.

E.  Legal principles

77.  As far as our research shows, it is the first appeal heard by this Court against a judge’s refusal to order an inquest into deaths under section 20(1)(a) of the Ordinance based on the public interest arising from the Coroner’s earlier refusal to do so after considering his mandate under sections 9 and 27 of the Ordinance.[45] As such, we find it necessary to discuss in greater detail the general principles on how to decide if it is in the public interest to hold an inquest into deaths including those caused by accident. It is necessary not only for disposing of this appeal but also for providing general guidance for future cases where the public interest is engaged.

E1.  Broad statutory framework

78.  Sections 15 and 16 mandate the coroner to hold an inquest for deaths in official custody or when required by the Secretary for Justice. Other than those provisions, the coroner may hold an inquest as provided for in the Ordinance. In this regard, section 9(1) generally provides:[46]

“Subject to subsection (2), a coroner may investigate –

(a) a reportable death; or

(b) any other death of a person which the coroner considers should be investigated in the public interest,

whether or not –

(i) the coroner has viewed the dead body concerned;

(ii) an autopsy has been performed on that body;

(iii) an inquest into the death is to be held by the coroner; or

(iv) an investigation into the death has previously been carried out.”

A reportable death is defined in section 2 as being a death specified in Part 1 of Schedule 1. It includes any death caused by accident.[47]

79.  In connection with deaths caused by accident, section 14(1)(ii) stipulates that where a person dies by accident, and whether or not the death of the person is a reportable death, a coroner may, if he considers that an inquest is necessary, hold an inquest into the death, with or without a view of the body as he thinks fit.

80.  Section 30 provides that an inquest shall be held in open court, unless the coroner directs that the public should be excluded from the inquest or any part of the inquest. In practice, holding an inquest or part of it in private is extremely rare.

81.  Pursuant to section 31, at an inquest, a properly interested person may be represented by counsel or solicitor. A properly interested person includes any person who is a parent, spouse, sibling or child of the deceased: Schedule 2, paragraph 1. This enables a properly interested person, who has an interest in the circumstances surrounding the death of the deceased, especially the immediate family of the deceased as defined, to take part in the proceedings, to examine the witnesses under section 32, and to make representation to the coroner as and when necessary.

82.  Section 20(1)(a) empowers the Court of First Instance, upon application by a properly interested person or the Secretary for Justice, to order an inquest to be held if it is satisfied that a coroner has failed to hold an inquest which ought to be held. It is well-settled that under section 20(1)(a), the court is not reviewing the coroner’s decision but approaches it on a de novo basis by asking itself whether an inquest ought to be held, with the applicant carrying the burden of satisfying the court why an inquest ought to be held.

83.  Drawing these provisions together, the broad statutory framework in the Ordinance works as follows for deaths caused by accident:

(1)  First, it is a matter for the coroner to decide if an inquest should be held. He has to take into account all the relevant circumstances and where necessary, especially when section 9(1)(b) is applicable, he needs to consider if it is in the public interest to do so. If he decides to hold an inquest, it will be held in open court where all properly interested persons may take part. We will return to the public nature of the proceedings in a moment.

(2)  Second, if the coroner decides not to hold an inquest, a properly interested person including the immediate family member of the deceased as defined or the Secretary for Justice may apply to the Court of First Instance for an order that an inquest be held. The judge may so order if he is satisfied that the coroner has failed to hold an inquest which ought to be held. The judge is performing a de novo exercise, which means that where necessary, he needs to consider if it is in the public interest to do so.

In short, if the public interest is engaged in a given case, it will inform the coroner and where necessary the Court of First Instance how to decide if an inquest should be held.

E2.  Public interest

84.  Public interest is not defined in the Ordinance. But it does not mean that the coroner or the judge is free to apply whatever notions of public interest as he sees fit. For at the common law, the long established norm is that when used in a statute, the term classically imports a discretionary value judgment to be exercised judicially. It is usually one of wide import so that the court can apply it to the many different varieties of circumstances as long as doing so does not exceed the confines of the statute. The term derives its content from the subject matter, the policy, and the scope and purpose of the enactment in which it appears. Applying these principles, it is the subject matter, the policy, and the scope and purpose of the Ordinance that inform the content of “the public interest” and how it is to be applied to a given case. This leads us to a closer examination of the role and functions of a coroner in conducting a death inquest under the Ordinance.

85.  The coronial jurisdiction is long embedded in our legal system. It was first introduced to Hong Kong when the English common law was adopted in 1841. Changes were made over the years which we need not delve into for present purposes. In 1988, the Law Reform Commission published the Report on Coroners (“the LRC Report”) and made a host of recommendations, which were eventually implemented by the Ordinance. The LRC Report very helpfully summarized the primary role of a coroner in a more contemporaneous legal and social setting of Hong Kong at [1.37]:

“In summary, the primary role of a coroner in Hong Kong is to investigate the causes of and circumstances surrounding any death which:-

(a) is of uncertain cause;

(b) is accidental;

(c) is suspicious; or

(d) requires investigation in the public interest

with a view to:-

(a) enabling interested persons to ascertain the true facts surrounding a death;

(b) making recommendations to prevent similar deaths;

(c) clearing innocent persons of unjustified suspicion;

(d) enabling early recognition of new hazards to life;

(e) drawing official attention to preventable diseases causing death and to the misuse of drugs;

(f) deterring persons who might otherwise be tempted to exercise insufficient care; and

(g) uncovering cases of crime that would otherwise go undetected.”

86.  In a similar vein, Jervis, supra, lists the grounds of public interest which a coroner’s inquiry should serve as follows:

(1)  to determine the medical cause of death;

(2)  to allay rumours or suspicion;

(3)  to draw attention to the existence of circumstances which, if unremedied, might lead to further deaths;

(4)  to advance medical knowledge;

(5)  to preserve the legal interests of the deceased’s family, heirs or other interested parties.

87.  Broadly speaking, the coroner performs both an investigative function with respect to a particular death and a social and preventive function which focuses on the public interest. The investigative function is a narrow one, inquiring into the cause of and the circumstances connected with the death.[48] This is reflected in section 27 of the Ordinance thus:

“The purpose of an inquest into the death of a person shall be to inquire into the cause of and the circumstances connected with the death and, for that purpose, the proceedings and evidence at the inquest shall be directed to ascertaining the following matters in so far as they may be ascertained –

(a) the identity of the person;

(b) how, and when and where the person came by his death;

(c) the particulars for the time being required by the Births and Deaths Registration Ordinance (Cap. 174) to be registered concerning the death; and

(d) the conclusion of –

(i) where the inquest was held without a jury, the coroner who held the inquest;

(ii) in any other case, the jury concerned,

as to the death.”

88.  The coroner’s social and preventive function is much broader. The public interest involved in this function primarily concerns prevention of further deaths;[49] public health or safety;[50] and the administration of justice.[51] As an important and indeed integral facet of this function, the coroner or the jury makes recommendations under section 44(2) of the Ordinance:

“(a) to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held;

(b) to prevent other hazards to life disclosed by the evidence at the inquest;

(c) to bring to the attention who may have power to take appropriate action any deficiencies in a system or method of work which are disclosed by the evidence at the inquest and which are of public concern.”[52]

89.  Although an inquest cannot and does not make any finding on civil or criminal liability, recent experience shows that its social and preventive function is becoming increasingly significant. It vindicates the public interest in the prevention of death by the public exposure of conditions or deficiencies in the institution, system or practice under examination. It exposes systemic failings, including maladministration or dereliction of duties of a public body, that cause death. It alleviates public concern, rumours and even suspicions surrounding deaths that would have otherwise continued to disturb the community. In some cases, this public-interest function has become just as important as, if not more important than, the distinctly separate function of investigating the facts of individual deaths and the roles of individuals involved in the deaths.

90.  These two functions of the coroner are enhanced by the public nature of an inquest. A public hearing serves as a means of (1) public ascertainment of facts relating to deaths; (2) formally focusing the public attention on and initiating public response to preventable deaths; and (3) assuring the public that the circumstances surrounding the death of none of its members will be overlooked, concealed or ignored.

91.  In deciding whether to exercise the discretion to hold a death inquest in the public interest, the coroner or, where necessary, the judge, needs to take into account all the circumstances of the case. Depending on the facts, the following factors are usually relevant.

92.  First, an inquest is a public investigative hearing that provides the coroner with wide and coercive evidence gathering powers. The desirability of holding an inquest is informed by its utility in advancing the investigation. Accordingly, in deciding if an inquest should be held, consideration may be given to any benefit that may accrue from the public nature of the proceedings and whether the conduct of the inquest itself, including the power to compel evidence and public examination of witnesses and evidence, will assist the investigation and facilitate the coroner or the jury in making the necessary findings and recommendations.

93.  Second, whether the identity of the deceased, and how, when and where the deceased came by his death are known or have been ascertained already: see section 27(a) and (b). Insofar as “how the deceased came by his death” goes, it is not limited to the direct or immediate cause of his death, as some older authorities might have suggested. On a proper construction based on the purpose of the coronial jurisdiction, including the coroner’s functions in conducting an inquest as just explained, it must include broadly “by what means and in what circumstances” the deceased died.

94.  Third, whether the circumstances of the death involve an issue that is systemic such as unsafe system of work or practice, improper medical procedure or treatment which is not a one-off incident, presence of ongoing problem, general malpractice, maladministration, or dereliction of duty of a public body. Such circumstances will most probably give rise to a legitimate public expectation that the systemic issue should be fully identified and addressed at a public inquest with a view to preventing similar deaths in the future.

95.  Fourth, whether it is necessary or desirable for the public to be fully informed of the circumstances of the death through an inquest. This may be a weighty consideration if the circumstances of the death are suspicious or have generated wide public concern, rumours or even suspicions.

96.  Fifth, whether an inquest would assist a properly interested person, in particular the family of the deceased, to have a better understanding of what occurred to the deceased. Depending on the facts, this may go further than addressing the needs of the properly interested person. It may also serve to enhance public confidence in the discharge of the coroner’s functions.

97.  Sixth, whether it would be expected to yield further information relevant to the circumstances connected with the death which has thus far not come to light and merits to be examined at a public inquest.

98.  Seventh, the likelihood that the jury may make useful recommendations if an inquest is held.

99.  Eighth, since public resources are finite, the coroner may need to consider the resource implications for holding an inquest. If, for example, on the available materials including the death investigation reports, the coroner is able to dispose of the matter without an inquest, the public interest may well be better served by the expeditious and economical dispatch of business than by holding an inquest which, in his view, would have no reasonable likelihood of affecting the outcome.

E3.  Application to the present case

100.  In the present case, the public interest is self-evidently engaged. It is best demonstrated by the appointment of the COI. The critical issue is whether it is in the public interest to hold an inquest into the deaths of the victims of the Lamma IV now by reason of the matters relied on by the applicants which, as seen, either only emerged after the COI Report or had not been considered by the COI. We pause to add that the COI cannot be criticized and it is certainly not our intention in this judgment to criticize it for not covering those matters in its investigation or the COI Report. On the contrary, the COI must be commended for carrying out a thorough and careful investigation. It is because of the time constraints imposed by the Chief Executive’s requirement to submit the COI Report within 6 months that it could not cover all the facts and issues in full.

101.  To recap, those matters concern:

(1)  whether from the outset Cheoy Lee knew that the Bulkhead was to be built watertight;

(2)  whether Mr Cheung who was responsible for making the Damage Stability Calculations shifted the blame for the mistakes to Mr Leizaola;

(3)  whether the Port Hull Bow Plating was attached to the Sea Smooth at the time of the collision;

(4)  whether the coaming of the Lamma IV was lower than required;

(5)  whether the Bulkhead was inspected annually or bi-annually;

(6)  the long working hours of seafarers in the passenger ferry industry.

102.  We take item (3) first. There is credible evidence that the Port Hull Bow Plating might have been attached to the Sea Smooth at the time of the collision, which might explain why it could penetrate the aluminum hull of the Lamma IV and cause such a long gash there. It plainly falls within the broad circumstances of how the victims died within the meaning of section 27(b) that needs further investigation. More importantly, it raises a number of important questions on a systemic level. For example, did Cheoy Lee obtain approval from the MD for its design, construction and installation? If yes, was there any standard(s) to be applied for each stage of the process? Did Cheoy Lee meet the standard(s)? What was the process or step(s) and who were the officers involved in the MD for giving such approval and certification? Was it subject to any regular survey of the Sea Smooth including that immediately prior to the collision? If Cheoy Lee did not obtain the requisite approval for installing the Port Hull Bow Plating to the Sea Smooth, why not? Did the MD discover it and if yes, when and how, and did the MD take any step in that regard, and if yes, what were those steps, and if not, why not? Assuming the MD asked Cheoy Lee to take remedial steps for removal of the Plating, when was it and why did Cheoy Lee did not comply with it, was the MD aware of its non-compliance and if yes, did it take any further action, and if not, why not? If the MD did not discover the Port Hull Bow Plating, why not, given the regular surveys of the vessel?

103.  Turning to item (4), the evidence suggests that the non-compliance of the coaming height contributed to the sinking of the Lamma IV. As such, it relates to the broad circumstances connected with the deaths of the victims. Similarly, it also gives rise to a number of systemic questions, the central one being how was it possible that the MD did not discover the non-compliance during the regular surveys of the vessel?

104.  Item (5) also raises a systemic question on surveys of vessels by the MD.

105.  The systemic questions raised by items (3) to (5) need to be examined in the public so as to expose any further systemic deficiency in the MD concerning approval, certification and survey for passenger vessels not yet discovered by the COI. It will most probably enable the coroner or the jury to make further recommendations to prevent similar deaths in the future, on how to address any further systemic deficiency in the MD, and on maritime safety generally.

106.  This already makes a very strong case for public examination of those responsible MD officers, who may or may not be the 17 officers identified in the THB internal investigation. Further, given its public nature and hence transparency, which differs from the THB internal investigation, it may help enhance the accountability of and public confidence in the governance of the MD. This provides another cogent reason why the responsible MD officers have to be publicly examined at an inquest, as rightly pointed out by the Death Investigation Reports.

107.  Item (1) clearly goes to the broad circumstances why the Lamma IV sank so quickly. Indeed, as submitted by Mr Tam, whether Cheoy Lee knew that the Bulkhead was to be built as watertight is a fundamental issue that needs to be resolved so that the applicants and the families of the victims and the public would have a better and more complete picture of what had exactly happened. It is far more than mere pin-pointing which company or which person should be ultimately responsible. It goes to the root cause of such a major maritime disaster.

108.  Item (2) falls within the broad circumstances of how the victims died. It also concerns the question if those responsible for the Damage Stability Calculations of the Lamma IV knew as a matter of fact that the Bulkhead was to be built as watertight. Viewed thus, it also needs to be examined at an inquest.

109.  Lastly, on item (6), the problem of long working hours of seafarers emerged at the COI hearing but was not addressed. It appears from the evidence available to us that it does not seem to have been remedied. The concern is not alleviated by the reluctant attitude adopted by the management of ferry companies in response to the MD’s attempt to review the matter and to the police investigation. Long working hours and shift arrangement have wider implications than being a mere question of working conditions or welfare of seafarers. It is also a systemic problem that affects general maritime safety of passenger ferry. It is therefore in the public interest to have them rigorously scrutinized at an inquest and for the coroner or the jury to make necessary recommendations under section 44(2) of the Ordinance. In taking the view that the coroner or the jury might not be able to add anything substantial to the 13 recommendations by the COI, the Judge did not appear to have given sufficient consideration to the fact that none of the 13 recommendations covers the long working hours or shift arrangement of seafarers.

110.  For completeness, we need to very briefly deal with the right to life under BL 28 and BOR 2 and Sony Rai and Imelda Quinto Abong that Mr Tam sought to rely on. In Sony Rai, Reyes J followed R (Middleton) v West Somerset Coroner, supra,[53] and held that the term “how the person came by his death” in section 27(b) should be broadly construed as “by what means and in what circumstances” in order to give effect to the right to life under BL 28 and BOR 2. He further held that the substantive obligation to protect right to life would be toothless without the backing of a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that the right to life has been violated and state agents might be implicated in the violation. While the procedural obligations could be fulfilled by other means, a death inquest is the customary avenue by which such obligations could be met. Sony Rai was applied by Mimmie Chan J in Imelda Quinto Abong. She also observed that when deciding on the need to hold an inquest under the Ordinance, due consideration is to be given to the duty of the government and public authorities in Hong Kong to safeguard and guarantee the individual’s right to life. It is not entirely clear if the Judge also endorsed such an approach in the present case.

111.  For our part, we do not find it necessary to consider and to express any view on whether the right to life under BL 28 and BOR 2 is necessarily engaged in (1) informing the construction of section 27(b) and (2) giving rise to a procedural obligation to hold a death inquest. It is because the question simply does not arise in the present case. As demonstrated above, we are able to arrive at a proper construction of section 27(b) and the decision that an inquest should be held in the public interest, without reference to the constitutional guarantee of right to life.

112.  For the reasons articulated above, we conclude that it is plainly in the public interest to hold an inquest into the deaths of the victims of the Lamma IV. We fully acknowledge that whether to order an inquest involves an evaluative discretionary judgment which reasonable minds may differ. However, with respect to the Judge, his view on what the public interest entails in the context of the coroner’s decision to hold an inquest and its application to the facts is too restrictive. Sufficient considerations had not been given to the matters relied on and the discretion was as a result erroneously exercised. We are therefore entitled to interfere.

F.  Disposition

113.  In consequence, we allow the appeal, set aside the Judge’s order and exercising the discretion afresh, order that a death inquest be held to investigate the deaths of the two victims of the Lamma IV named in the Amended Notice of Appeal. We further make no order as to costs.

114.  Before leaving this judgment, we wish to commend the police for their efforts in picking up the threads left by the COI and preparing the Death Investigation Reports which provide the crucial basis for the inquest. We also wish to express our deepest sympathy to the victims’ families for their loss. We earnestly hope that when the inquest is concluded, there will be closure to all of them, which is regrettably long overdue.