LAM WAI WING v. MISS YIM SHUN YEE ADA, THE CORONER

HCAL 194/2019

[2022] HKCFI 3687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 194 OF 2019

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J U D G M E N T

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1.  This is an application for judicial review against the finding of unlawful killing at the death inquest into the death of the late Mr Chan Fai Wong (“the Deceased”)[1]. The Applicant is a police officer. He was an interested party[2] in the death inquest. Leave to apply for judicial review was granted by Li J.

A.  FACTS OF THE INCIDENT LEADING TO THE INQUEST

2.  The Deceased was a taxi driver. In the evening on 11 November 2012, he was involved in a scuffle with his passengers at the Kowloon side entrance of the Western Harbour Tunnel. During the incident, the Deceased fell to the ground and claimed to have hit his head. Police was called and the Deceased was arrested.

3.  Officers including the Applicant attempted to bring the Deceased onto a police vehicle. The Deceased resisted. The officers managed by force to handcuff the Deceased and carried him onto the police vehicle. In the course, for a brief moment there was contact of the arm of the Applicant around the neck of the Deceased.

4.  Later the Deceased was transferred onto an ambulance nearby and admitted into Queen Elizabeth Hospital.

5.  His condition deteriorated and eventually became tetraplegic.

6.  Two days after the incident, MRI revealed that the Deceased suffered from right C5/6 facet joint dislocation and left C5/6 facet joint subluxation with spinal cord compression and edema. Serial halo traction was applied and the C5/6 facet dislocation was successfully reduced.

7.  However, the Deceased developed C5/6 disc prolapse causing persistent cord compression. As the Deceased was not fit for surgery due to a heart condition, conservative treatment was adopted.

8.  The condition of the Deceased was complicated by infection. Eventually he succumbed to bronchopneumonia and passed away on 12 December 2012.

B.  THE DEATH INQUEST

9.  The death inquest was heard by the Respondent (hereinafter called the Coroner)[3] sitting with five jurors.

10.  There were seven interested persons at the Death Inquest:

(1)  1^st Interested Party: The daughter of the Deceased;

(2)  2^nd Interested Party: The Commissioner of Police;

(3)  3^rd Interested Party: The Fire Services Department;

(4)  4^th Interested Party: PC7674;

(5)  5^th Interested Party: The Applicant – PC 6823;

(6)  6^th Interested Party: Sgt 50355[4]; and

(7)  7^th Interested Party: The Hospital Authority[5].

11.  An important issue at the Death Inquest was that whether or not when officers carried the Deceased onto the police vehicle, the Applicant had deliberately used a chokehold at the neck of the Deceased to lift him up, causing injuries to his cervical spine, and this eventually led to his death. The 4^th Interested Party was alleged to have assisted in lifting the lower parts of the body of the Deceased.

12.  The jury, by a majority of 3 – 2, returned a verdict of unlawful killing, with the following findings:

(1)  The direct cause of death was bronchopneumonia;

(2)  Indirect cause of death was neck injury causing the Deceased to be bedridden; and

(3)  At about 22:21:33 hours on 11 November 2012, outside the Administration Building of Western Harbour Tunnel, the Deceased was lifted up by being held around the neck, causing injuries.

13.  The jury also made recommendations which are not of concern in this application.

C.  SUMMING UP OF THE CORONER

14.  The parts of the summing up of the Coroner which are relevant in the present application are as follows:

(1)  There are four possible verdicts open to the jury on the evidence[6]:

(a)  death by unlawful killing,

(b)  death by misadventure or accident,

(c)  death by natural causes, and

(d)  open verdict;

(2)  the jury was to first consider the verdict of unlawful killing[7];

(3)  to reach the verdict of unlawful killing, the jury should be satisfied beyond reasonable doubt of the following four elements[8];

(a)  the relevant act of the Applicant had caused the dislocation of the cervical spine of the Deceased and damaged his central nervous system, causing him to be bed-ridden for the long term, contracting complication, thus causing his death,

(b)  the act was intentional,

(c)  the act was dangerous, and

(d)  the act was unlawful;

(4)  if the jury accepted the evidence of the orthopaedic expert, in the light of the evidence of the Applicant and the Superintendent[9] responsible for police training on the use of force, there was no dispute with respect to the third and fourth issues mentioned in sub-paragraph (3) above[10];

(5)  if that is the case, the jury was directed to rule only on the following issues[11]:

(a)  whether the act of the Applicant had damaged the central nervous system of the Deceased, causing him to be bedridden and contract complication, thus causing his death, and

(b)  whether the act was intentional.

D.  RELIEF SOUGHT

15.  The applicant sought the following relief[12]:

(1)  An Order of Certiorari to quash the jury’s verdict of unlawful killing;

(2)  Interim relief in the form of an instruction restraining the Department of Justice from taking any further step in the prosecution until after the determination of this application for judicial review or until further order;

(3)  Such further or other remedy, relief or order as may be just and expedient in the circumstances; and

(4)  An order for costs.

16.  Whilst Li J granted leave for judicial review on all grounds[13] as set out in the Amended Notice of Application for Leave to Apply for Judicial Review[14], the interim injunction sought was refused.[15]

E.  GROUNDS OF APPLICATION

17.  The applicant was represented by Mr Jat Sew-tong, SC, together with Ms Josephine Tjia[16], who put forward the following grounds[17] based on which the relief is sought:

(1)  The summing up of the Coroner is defective in the following aspects:

(a)  The Coroner failed to leave to the jury the issue of whether there was an unlawful act (Ground 1);

(b)  No direction has been given to the jury on whether the Applicant intended to apply unlawful force to the Deceased (Ground 2); and

(c)  No direction has been given to the jury as to how they should assess whether the force applied was reasonable (Ground 3).

(2)  Further or alternatively, the verdict of the inquest was one that no reasonable jury, properly directed, could have returned upon the evidence (Ground 4).

F.  SUBMISSIONS

F1.  The stands of the Coroner and the 2^nd, 3^rd, 5^th, 6^th and 7^th Interested Parties

18.  The Coroner and the abovementioned Interested Parties indicated that they would maintain a neutral stand in this proceedings. Leave has been granted for them not to attend the hearing.

F2.  Submission of the Applicant

19.  The main points in the submission of Mr Jat are as follows.

F2.1  Ground 1: The Coroner failed to leave to the jury the issue of whether there was an unlawful act

20.  The criticism in relation to this Ground is in relation to the part of the summing up as stated in paragraphs 14(4) and (5) above. It is the submission of Mr Jat that the direction that there was no dispute over the issues of whether there was an unlawful act and whether the act was dangerous amounts to a material misdirection as the Coroner erred in failing to leave two crucial issues to the jury.

21.  Mr Jat submitted that, in the circumstances of the present case, as the Applicant was entitled to use reasonable force to effect lawful arrest and detention of the Deceased, the circumstances gave rise to the following issues:

(1)  Whether the Applicant had used excessive force, and in this regard the jury should be directed to consider all the relevant circumstances and what the Applicant genuinely believed to be reasonably necessary; and

(2)  Whether the Applicant intended to apply unlawful force to the Deceased.

22.  Mr Jat cited Pollard v Chief Constable of West Yorshire Police[18], in which the court held that whether the force used was excessive or reasonable was to be decided upon consideration of all the relevant circumstances, and judged in the light of the circumstances apparent to the Applicant. The issue is a mixed question of fact and law that should generally be left to the jury.

23.  Mr Jat further submitted that, in giving her relevant directions, the Coroner appeared to have assumed that the Applicant and the Superintendent accepted that the actions in question was unlawful. This is inconsistent with their evidence.

24.  Whilst accepting that a statement which the Applicant made during his giving of evidence might have suggested that he accepted what had happened was unlawful, Mr Jat stressed that this statement must be considered in context and should not be directly taken to be an acceptance or admission by the Applicant that what he did was unlawful.

25.  The statement in the testimony of the Applicant as mentioned in the previous paragraph was made when he was cross examined by Mr Sarony. What he said may be translated as: “I want to say that I choked his neck, it must be an unlawful force. But the action just now happened in a situation against my will, so I knew that there was a risk that he could be injured by me choking his neck.”[19]

26.  Mr Jat stressed that apart from the statement mentioned in the previous paragraph, other parts of the evidence of the Applicant, which have the following effects and / or implication, should have been taken into account:

(1)  He had only intended to apply reasonable force to the Deceased to effect the arrest;

(2)  He had intended to lift the Deceased by the Deceased’s upper arms (around the shoulder area), but in attempting to do so his right arm accidently contacted the Deceased’s neck;

(3)  When he realized that situation, he had immediately released his arm and checked with the Deceased whether he had been injured;

(4)  At the time of his action, he believed that the Deceased’s weight was resting on his leg instead of on his arm around his neck; and

(5)  He had never intended to put his arm around the neck of the Deceased, the contact was accidental.

27.  It is the submission of Mr Jat that, putting the whole of the testimony of the Applicant in context, at most the Applicant was accepting that the intentional use of a chokehold to lift the Deceased would be unlawful, but that it was not what he intended to do.

28.  As regards the evidence of the Superintendent, in his witness statements which was adduced as evidence he stated the followings:

(1)  Despite it is his view that what the Applicant described he had done involved techniques not directly correspond with those suggested in the Resistance Control syllabus, given the nature of the task the officers were attempting to achieve, namely to manoeuvre a non-compliant subject into a police vehicle, this is not entirely surprising[20];

(2)  In circumstances whereby traditional control techniques are not considered effective, officers are given the flexibility to use other means of control to achieve the task, on the understanding that such force should be both reasonable and proportionate[21];

(3)  The control actions of the Applicant, whilst do not directly correspond to the said suggested techniques, in his opinion constitute a level of force that could be equated to somewhere between soft and hard restraint control as laid down in the Use of Force continuum[22];

(4)  Within the guidelines of the continuum, such a level of force is considered proportionate when dealing with a subject who displays defensive resistance, ie, physical inaction intended to prevent control, might cause injury to oneself or others[23].

29.  The Superintendent did say the followings when he testified:

“If intentionally somebody grabs someone by the neck from a height and brings them into a vehicle, clearly that is not reasonable or proportionate but from the evidence presented to me this was not the intention. … I cannot say absolutely what the intention was … I am presented with evidence that it was not the intention … in a dynamic situation like this the intended the technique sometimes has unintended results.”[24]

30.  Mr Jat submitted that, with the evidence of the Superintendent properly understood, he was only commenting on a hypothetical situation.

31.  By reason of the above, the submission of Mr Jat was that, in the light of the whole of the evidence, the Coroner was wrong to direct the jury that the issue of whether there was an unlawful act was not in dispute, she should have left the issue to the jury. Failure to do so amounts to an error of law.

32.  A police officer is entitled to use reasonable force to arrest and detain someone who is reasonable suspected of having committed a criminal offence. Section 50(2) of the Police Force Ordinance[25] provides:

“If any person who may lawfully be apprehended under subsection (1) or (1B) forcibly resists the endeavor to arrest him or attempts to evade the arrest, a police officer or other person may use all means necessary to effect the arrest.”

33.  In deciding whether the force used was reasonable, all relevant circumstances have to be considered. (See William Alan Terence Crawley v AG[26] and Leigh v Cole[27].)

F2.2  Ground 2: No direction has been given to the jury on whether the Applicant intended to apply unlawful force to the Deceased.

34.  Whilst Ground 1 focuses on whether the force used was excessive or reasonable in the circumstances, the focus of Ground 2 was on the issue of the intention of the Applicant.

35.  Relying on R v Williams (Gladstone)[28], Mr Jat submitted that in situations where force might be applied to another lawfully, the mental element necessary to constitute guilt is the intent to apply unlawful force, an intent to apply the force is not enough. As the Coroner only directed the jury to consider whether the act they satisfied the Applicant had done was done by him intentionally, she failed to give proper advice as to the mens rea required: intent to apply unlawful force.

36.  In Williams (Gladstone)[29], Lord Lane CJ observed:

“… There are circumstances in which force may be applied to another lawfully. … a person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of an offender or suspected offender or persons unlawfully at large. In each of those cases the defendant will be guilty if the jury are sure that first of all he applied force to the person of another, and secondly that he had the necessary mental element to constitute guilt.

The mental element necessary to constitute guilt is the intent to apply unlawful force to the victim. We do not believe that the mental element can be substantiated by simply showing an intent to apply force and no more.”

37.  Mr Jat also relied on R v John Scarlett[30] in which the English Court of Appeal held that the jury should be directed that “the accused is not to be found guilty merely because he intentionally or recklessly used force which they consider to have been excessive. They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be, and, provided he believed the circumstances called for the degree of force used, he is not to be convicted even if his belief was unreasonable”.[31]

38.  In The Commissioner of Police v The Coroner of Hong Kong[32], Keith J held that the coroner erred in not directing the jury that the question whether the degree of force which had been used was unreasonable in the circumstances had to be judged by what the officer genuinely believed to be reasonable necessary in those circumstances.[33]

39.  In the course of consideration, the jury should be directed to bear in mind that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action.[34]

40.  Mr Jat further pointed out that the questions which the jury sent to the Coroner in the course of deliberation indicated the confusion caused to the jury in particular as there was no adequate delineation of what the unlawful act was. As a result, the jury could not have come to a safe determination of whether the Applicant had intended to use any unlawful force.

41.  After about three hours of deliberation, the jury raised two questions. For the first one, the Coroner confirmed that the act in question referred to the physical contact of the Applicant with the neck of the Deceased until the time his arm left his neck[35]. The Coroner answered in the affirmative to the second question: “For ‘intentional act’ does the jury have to be sure beyond all reasonable doubt that when [the Applicant] had physical contact with the neck of the taxi driver but before lifting him up even though [the Applicant] knew that his arm was around the neck of the driver he still continued with such movements?”[36]

42.  Citing the decision of the Court of Final Appeal in HKSAR v Ma Kwok Fai[37], Mr Jat submitted that in inferring the intent of a defendant, the jury should be directed to focus on all the circumstances instead of the single blow that caused the fatal injury.

F2.3  Ground 3: No direction has been given to the jury as to how they should assess whether the force applied was reasonable

43.  It was the submission of Mr Jat that, as the issue of whether there was an unlawful act was not left to the jury, it follows that the related issue of whether the Applicant had used unreasonable force was also not contemplated by the jury.

44.  Mr Jat added that the consideration in this matter involved a holistic consideration of all relevant circumstances and a proper consideration cannot be reached even if the particular action is or is not prescribed in any police manual. In the light of the complexity of the consideration involved, careful direction should be given to the jury and yet the jury had been told that this was not an issue in dispute.

F2.4  Ground 4: No reasonable jury, properly directed, could have returned upon the evidence

45.  The main points put forward by Mr Jat in support of this ground are:

(1)  The action complained of lasted no longer than a few seconds;

(2)  It was but one of the many movements during the long struggle between the Applicant and the Deceased;

(3)  The action was not an isolated, well-contemplated action in and of itself;

(4)  There is no evidence which indicates that the Applicant had intended anything other than to complete the task of getting the Deceased onto the police car by using reasonable force;

(5)  There is no evidence or allegation of malice or intentional harm;

(6)  The situation was at worst a case of error of judgement;

(7)  It is less than clear that the force applied was unreasonable, in particular having regard to the chaotic situation and the narrow room for manoeuvre;

(8)  The overall level of force applied by the Applicant was not unreasonable in the circumstances; and

(9)  There were weaknesses in the evidence to prove causation.

F2.4.1  Submission of the 1^st Interested Party

46.  The 1^st Interested Party was represented by Mr Neville Sarony, KC, SC, together with Ms Angel W Lau.

47.  The first criticism which Mr Sarony made is that the Coroner was not represented, nor was the Commisioner of Police and The Director of Fire Service when there should be a positive duty on the part of the Department of Justice to assist the court in the serious issue in this application.

48.  In relation to the grounds put up in this application, Mr Sarony stressed that, save for one aspect of Ground 4, namely causation, none of the other grounds had been put before the jury by the counsel of the Applicant[38] at the Inquest.

49.  Mr Sarony drew to the attention of the court that, at the conclusion of the evidence and in the absence of the jury, the Coroner set out her preliminary thoughts on the scope and directions of her summing‑up, discussed the same with counsel[39] and subsequently provided counsel with a draft of the directions in law that she proposed to give to the jury.[40] On the following day, a revised final version was provided to the counsel before the summing up started.[41] Counsel for the Applicant at the Inquest did not raise any of the issues now relied on.

50.  In relation to Ground 1, the assertion of failure to leave the issue of unlawful act to the jury, Mr Sarony pointed out that as the Applicant did not give such evidence in the Inquest, there is no evidence to support his present claim that he only intended to apply reasonable force on / to the Deceased to affect the arrest and removal[42].

51.  Mr Sarony submitted that it must have been for this reason that counsel representing the Applicant at the Inquest did not raise such issue before the jury in her closing speech. Her speech only touched upon his evidence once on the fatal act, namely what he was doing was merely to carry out his superior’s order, thus he only intended to get the Deceased onto the police car.[43]

52.  Mr Sarony also pointed out that it was the clear evidence of the Applicant that prior to the fatal moment the Deceased had already been arrested by another officer and therefore nothing he had done was to effect an arrest.

53.  Mr Sarony submitted that, the assertion of the Applicant as stated in paragraph 20 above against the Coroner is wrong as it must be borne in mind that she started this part of the direction with “if you accept the expert’s opinion and the evidence given by [the Applicant] and the evidence of the superintendent …”. Mr Sarony further submitted that the actions of the Applicant, as shown in the CCTV footage and his own evidence, were clearly deliberate and dangerous. Such acts were in the opinion of the Superintendent disproportionate and unjustifiable. The Superintendent gave expert evidence on the authorized methods of handling someone under arrest who was uncooperative and said officers were trained that the neck and head were fragile. He also said:

“If intentionally somebody grabs someone by the neck from a height and brings them into a vehicle, clearly that is not reasonable or proportionate …”[44];

“To intentionally do so to someone who is handcuffed would not, in my opinion, be proportionate or justifiable.”[45]

54.  Mr Sarony summited that as the act was neither reasonable, proportional or justifiable, it had no legal justification, and hence what the Applicant did was not lawful.

55.  Mr Sarony further submitted that before consideration of the Applicant’s account of what he intended, it must be emphasized that the use of the word “intention” is confined to whether or not the act itself was intended, or was it an accident.

56.  In relation to Ground 2: failure to direct on whether the Applicant intended to apply unlawful force, it was the submission of Mr Sarony that the directions on this aspect are comprehensive, careful and detailed. The jury was specifically directed:

“You can return a verdict of unlawful killing only when you are satisfied beyond all reasonable doubt that the officer put an arm around the neck of the Deceased intentionally and what he did caused dislocation of the cervical spine.”[46]

57.  Mr Sarony quoted the relevant part of the testimony of the Applicant and submitted that it is evidence to prove the required mens rea.[47] In his affirmation, the Applicant explained what he said at the Inquest was that he was explaining that whilst someone intentionally choked an arrestee by the neck it would be unlawful but the act was not what he had intended, the situation occurred against his view.[48] The submission of Mr Sarony was that it was irrelevant whether or not the Applicant was reluctant.

58.  It is the submission of Mr Sarony that the matter involved a two-step process. Firstly, did the Applicant intentionally hook his arm around the neck of the Deceased, and secondly was that act unlawful. In this regard, the direction of the Coroner was sufficient. The effect of the evidence of the Applicant was that his arm slipped accidently from where he had intended to put it. Obviously, the jury rejected it. The jury had the benefit to the CCTV footage which revealed a wholly different scenario, and the evidence of the Superintendent. Whether or not the force used was reasonable was to be assessed in the context of a young well-built officer responsible for a 65 year old man with hands cuffed behind, pulling him off the ground.

59.  Mr Sarony further submitted that, contrary to the argument of the Applicant, the jury’s questions[49] demonstrated that they did have a clear grasp of what they had to decide.

60.  In relation to Ground 3: failure to direct on how to assess whether the force used was reasonable, the submission of Mr Sarony was that there is no rational basis to suggest that the directions were defective as:

(1)  The effect of the evidence of the Applicant was that it was an accident, neither did he say in evidence that he had used reasonable force nor did his counsel put this before the jury, counsel focused on the expert evidence of Dr Lee and tried to put the blame for the Deceased’s spinal injuries on other incidents and other people; and

(2)  The question of what was reasonable was subsumed into the issue of whether the method used by the Applicant was reasonable, proportionate or justifiable and in this regard the opinion evidence of the Superintendent was highly relevant.

61.  Mr Sarony supported the directions given by the Coroner and submitted that it was open to the jury to reject the explanation of the Applicant which he described as a nonsense.

62.  In relation to Ground 4: the allegation that the verdict was irrational, the submission of Mr Sarony was that the verdict is not irrational and it was just an endeavor by the Applicant to overturn it regardless of evidence, logic and law.

F2.4.2  Submission of the 4^th Interested Party

63.  The 4^th Interested Party, who was represented by Ms Priscilia Lam, also submitted that there were material irregularities in the summing up of the Coroner, but on two aspects not initially highlighted by the Applicant, namely:

(1)  The Coroner failed to give a Liberato[50] direction in relation to the four scenarios that could have caused the injuries of the Deceased; and

(2)  She failed to give a direction that the inference drawn against the Applicant must be one which was the only reasonable inference to be drawn on the whole of the evidence.

64.  Ms Lam quoted the following part of the summing up of the Coroner:

“What is not in dispute is that the dislocation and the spinal cord injury was caused by the dislocation. Therefore, the spinal cord was compressed, the central nervous system was injured. What is in dispute is when and how he was injured. At the Inquest, we have heard evidence that at different stages external forces were applied on the taxi driver. There are mainly three times :

First of all, when he had a struggle with the passenger outside S16 he fell down and hit the head.

The second one, [the Applicant] put an arm around his neck and lift him up.

The third one, other external force applied on the taxi driver.

And also during the Inquest there is also other discussion that the compression of the cord caused by a protrusion of prolapsed disc as a result of halo traction deliberately placed the neck injury and become a new reason for the final injuries.

…

At the outset of the Inquest to accept or reject, to accept partly or to reject partly of the evidence it is entirely for you.”

65.  It is the submission of Ms Lam that whilst the Coroner had correctly identified that there were four scenarios which could have caused the injuries, if scenarios one, three and four was found by the jury to be true or may be true, it would have exonerated the Applicant of unlawful killing. The Coroner, however, had not directed the jury that if their finding is such it would afford a defence to the Applicant, ie, if they find scenario one, three or four is true or may be true, they should not return the verdict of unlawful killing. The only time the Coroner had given a Liberato direction was in relation to the issue of whether the Applicant had performed the unlawful act intentionally:

“… If you find what the police officer said was possibly true then this is a reasonable doubt. You can return this verdict only when you are satisfied that the act of the police officer was intentional when you are satisfied beyond all reasonable doubt.

Even if you do not accept the evidence of [the Applicant], if you think that his evidence is possibly true then this is a reasonable doubt.”

66.  The other alleged irregularity which Ms Lam complained about is that the Coroner had never directed the jury that if they were to draw an adverse inference against [the Applicant], it has to be the only inference that can reasonably be drawn on the basis of facts found.[51]

F2.4.3  Applicant’s Submission in Reply

67.  The reply submission of Mr Jat has the following main supplementary points:

(1)  The submission of the 4^th Interested Party was adopted in support of the 4^th Ground, not as the 1^st Interested Party complained not related to the grounds extant on the day Li J granted leave;

(2)  The crux of the evidence of the Applicant was that he only intended to deploy reasonable force to carry the Deceased onto the police vehicle and he did not intentionally put his arm around the neck of the Deceased;

(3)  What the Applicant now contends therefore had been raised in the Death Inquest;

(4)  Even if it had not been raised, the Applicant was not precluded from arguing it as the focus was whether there were material mis-directions to the jury which rendered the verdict unsafe[52];

(5)  In the light of the entirety of the evidence, it cannot be said that the jury would inevitably come to the same conclusion even if they had been properly directed. There was miscarriage of justice in the proceedings; and

(6)  It has been the usual practice for the Coroner subject to judicial review to take a neutral stand in order not to compromise its impartiality[53].

G.  DISCUSSION AND CONSIDERATION

68.  This is an application for judicial review, not an appeal. The concern of the court, in the context of the present case, is whether when the Coroner gave direction to the jury she committed an error of law.

69.  The issue which needs to be resolved in this application is a relatively narrow one.

70.  There is no complaint about the four possible verdicts left by the Coroner to the jury to consider and decide and the direction that the jury was to first consider the verdict of unlawful killing.[54] The main complaint of the Applicant is that the summing up of the Coroner in relation to the consideration of whether or not there had been unlawful killing was defective.[55]

71.  In this regard, the Coroner gave the jury the directions to the following effect[56]:

“Before you can find that the Deceased died of manslaughter, you must be sure of the following matters :

1. The acts of the Applicant caused the death of the Deceased;

2. The acts were intentional;

3. The acts were dangerous; and

4. The acts were unlawful.”

72.  These directions were in conformity with the specimen direction in relation to Dangerous and Unlawful Act Manslaughter (hereinafter called Unlawful Act Manslaughter).

73.  The part of the directions which attracted criticism was mainly the following: “If you accept the evidence of the orthopedic expert, in the light of the evidence of the Applicant and the Superintendent[57], there is no dispute with respect to the third and fourth matters [mentioned in paragraph 71 above][58]” (hereinafter called “the impugned direction”)[59]. The effect of the impugned direction on the jury must be that, if they accept the evidence of the orthopedic expert, they did not need to consider the issue of whether or not the acts were dangerous and unlawful.

74.  The unlawful act which was alleged, though not expressly spelled out, is in the nature of assault, or more exactly battery. Battery is an intentional or reckless act of the accused by which he applies unlawful force to another person.

75.  There has been a line of authorities which held that assault or battery is an offence which requires a mens rea of basic intent.[60]

76.  However, there are circumstances in which force may be applied to another person lawfully. Obvious examples are situation of self-defence, prevention of crime or where the other person consents to the force applied to him. If it is a prosecution, when lawfulness is a live issue it is for the prosecution to prove the unlawfulness. In a death inquest where unlawful killing is alleged, unlawfulness has to be proved to the criminal standard.

77.  The situation in the present case involved a police officer discharging his duty and in the course force was applied to the Deceased.

78.  A police officer is empowered by the Police Force Ordinance[61] to use necessary force in certain situations such as the present one. Whilst there was contrary submission by Mr Sarony, in my judgment, the Applicant was entitled to use force as the situation was one covered by the Police Force Ordinance.

79.  In John Scarlett[62], Beldam LJ referred to cases where an act of assault was performed in circumstances where the accused is entitled to use reasonable force either in self-defence or for the purpose of preventing crime and echoes the view of Lord Lane CJ in Williams (Gladstone)[63] that careful direction was needed. What Lord Lane CJ said can be seen in paragraph 36 above.

80.  Beldam LJ added:

“Where, as in the present case, an accused is justified in using some force and can only be guilty of an assault if the force used is excessive, the jury ought to be directed that he cannot be guilty of an assault unless the prosecution prove that he acted with the mental element necessary to constitute his action an assault … Further, [the jury] should be directed that the accused is not to be found guilty merely because he intentionally or recklessly used force which they consider to have been excessive. They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be …”[64]

81.  The force used has to be reasonable in the circumstances. As Collins J said in R v Nimrod Owino,[65] otherwise it would justify shooting of someone who was merely threatening to throw a punch.

82.  Whether the force used was reasonable in the circumstances was a live issue in the present case. The use of force, in situation like the present case where a police officer was in the course of discharging his duty, is unlawful if it is excessive in the circumstances.

83.  Whether the force used is excessive has to be gauged in the light of what that person believes the circumstances to be.[66] In John Scarlett,[67] Beldam LJ said:

“… the accused is not to be found guilty merely because he intentionally or recklessly used force which [the jury] consider to have been excessive. They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and provided he believed the circumstances called for the degree of force used. he is not to be convicted even if his belief was unreasonable. …”

84.  John Scarlett[68] was considered by another division of the England Court of Appeal in Nimrod Owino,[69] in which Collins J observed :

“In the context of an issue of self-defence or reasonable restraint, … a person would not be guilty of an assault unless the force used was excessive; and in judging whether the force used was excessive, the jury had to take account of the circumstances as he believed them to be. …

… in judging what he believed the circumstances to be, the jury are not to decide on the basis of what was objectively reasonable; and that even if he, the defendant, was unreasonable in his belief, if it was an honest belief and honestly held, that he is not to be judged by reference to the true circumstances.”

85.  The following passage in Williams (Gladstone)[70] was cited with approval:

“In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury come to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case. If however, the defendant’s alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.

Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely on it.

We have read the recommendations of the Criminal Law Revision Committee, …: ‘The common law defence of self-defence should be replaced by a statutory defence providing that a person may use such force as is reasonable in the circumstances as he believes them to be in the defence of himself or any other person.’ … In the view of this Court that represents the law …”

86.  The Court of Final Appeal held in HKSAR v Lau Shing Chung Simon[71] that “assault is an act by which the defendant, intentionally or recklessly, applies unlawful force to the complainant … The mental element to be proved is an intent to apply unlawful force.”[72]

87.  In my judgment, the line of thought as announced in these cases is applicable in the present case.

88.  In the present case, as there was an allegation of unlawful act in the nature of battery performed in the course of police duty, before the jury can find there was an unlawful act causing death, they have to be sure that all the elements of the offence including the mens rea and unlawfulness have been proved.

89.  In deciding the issues, as held in Williams (Gladstone)[73] if there is credible evidence which shows that the Appellant might have been labouring under a mistake of facts, he was to be judged according to his mistaken view of the facts, whether or not that mistake was, on an objective view, reasonable or not. Lord Lane CJ said:

“... The jury should be directed first of all that the prosecution have the burden or duty of proving the unlawfulness of the defendant’s actions; secondly, if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts; thirdly, that is so whether the mistake was, on an objective view, a reasonable mistake or not.

In a case … where … self defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case.”

90.  His Lordship stated that reasonableness is a factor in deciding whether the alleged belief is to be accepted or not, but stressed that “if the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant.”

91.  It was also held in R v Kimber[74] that if the defendant might have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts.

92.  The jury should have been directed to give careful consideration to the whole of the evidence and decide on each of the matters mentioned in paragraph 71 above.

93.  Causation was one of the major concerns at the Inquest. It was the focus of the submission of the counsel then representing the Applicant. The Coroner spent quite some time on this matter in her summing up. Though there was submission from Mr Jat that the finding that causation had been proved is inconsistent with evidence, the direction on this matter is not a concern in this application, the directions on the other three matters[75] are.

94.  The other three matters, which are the concern in this application, involve finding of facts by the jury. The jury should have been directed to take into account the whole of the relevant circumstances as revealed by evidence in making their decision.

95.  The effect of the impugned direction[76] on the jury is that, once they accept the evidence of the orthopedic expert, they only had to consider and decide on the issues of causation and intent. The Coroner expressly said that in such circumstances the issues of whether or not the act was unlawful and dangerous were not in dispute.

96.  Mr Jat submitted that these do not represent the real picture as presented by the evidence.

97.  Having considered the evidence of the Applicant and the Superintendent, in my judgment, the two issues should have been left to the jury for consideration and decision. In Leung Tak Wing[77], Stock ACJHC observed:

“The law is this : whether there is evidence which raises a triable issue is a matter of law for the judge; but where there is such evidence, determination of the issue is a question of fact for the jury and not a question of law for the judge.”[78]

98.  Indeed, in the course of the summing up, the Coroner said it was the evidence of the Applicant that he had assessed the situation, with a view to use reasonable force to discharge his duty effectively without causing the Deceased serious harm.[79] In my judgment, irrespective of the strength of evidence against the Applicant, whether or not the act of the Applicant was unlawful and dangerous remained live issues in the Death Inquiry.

99.  In the light of the authorities cited earlier, and in the light of the evidence in the case, lawfulness is a live issue. So is the issue of whether the act was dangerous. In DPP v Newbury and Jones[80], the House of Lords cited what Edmund Davies J[81] observed in R v Church[82]:

“… The conclusion of this court is that an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognize must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.”

100.  Lord Salmon further said:

“The test is still the objective test. In judging whether the act was dangerous the test is not did the accused recognize it was dangerous but would all sober and reasonable people recognize its danger.”[83]

101.  As said, the issue in this application is a narrow one. It is good practice to tailor the summing up and direction so that the jury will not be over burdened with consideration and decision of unnecessary issues. However, in my judgment, in this Death Inquest, in her effort the Coroner has unduly usurped the function of the jury in a limited aspect.

102.  Even if it is a case that the jury might have little difficulty in making up their mind, the issues should have been put before the jury for consideration and decision.

103.  Despite the forceful submission of Mr Sarony, I do not find this a case where the jury, if properly directed, must have reached the same verdict, in particular taking into account the narrow margin of the majority in the decision.

104.  I note from the submission of Mr Sarony that parties did not raise any issues the Applicant now relies on and did not comment on the draft summing up which the Coroner provided to them. The impugned direction was included in the first draft the Coroner provided to parties[84] as well as in the final draft[85]. Counsel then representing the Applicant had made submission but did not touch on this matter.

105.  Parties have the duty to render proper assistance to the court / tribunal. However, even if the duty had not been duly fulfilled, if there is a material mis-direction leading to miscarriage of justice, the situation has to be rectified. It was held in Ho Hoi Shing v HKSAR[86] that where for whatever reason counsel chose not to avail his client of a defence, the trial judge has a duty to place that defence before the jury for its determination so long as the evidence in support of a possible conclusion is not wholly incredible, so tenuous or uncertain that no reasonable jury could reasonably accept it. In HKSAR v Leung Tak Wing[87], the Court of Appeal reiterated this principle.[88]

106.  Grounds 1 ‑ 3 concern matters which are inter-related and the major concern is whether or not the summing up of the Coroner is defective as alleged so that the verdict of the jury is unsafe. In my judgment, it is.

107.  The impugned direction[89] amounts to a material error of law and on this finding alone the application for judicial review should be granted.

108.  As regards Ground 4, I do not agree that on the evidence a reasonable jury properly directed could not have reached the same verdict.

109.  In all the circumstances, I consider it appropriate to order the death inquest to be conducted afresh before another Coroner.

110.  As regards the two matters raised by Ms Lam[90], I see the merits. Such directions should be given if the issues are to arise in the fresh inquiry.

H.  CONCLUSION

111.  Grounds 1 ‑ 3 are made out. Application for judicial review is granted. I make the following orders:

(1)  An order of Certiorari to quash the jury’s verdict of unlawful killing; and

(2)  A fresh Death Inquest be conducted before another Coroner.

I.  COST ORDER NISI

112.  The Applicant indicated, in case the application for judicial review is granted and an order of Certiorari is made, an application for cost against the 1^st Interested Party.

113.  I make a cost order nisi in the following terms:

(1)  the 1^st Interested Party to pay the costs of the Applicant, amount to be taxed if not agreed; and

(2)  the cost order will become absolute within 14 days unless there is objection.