CHEN YUK LUN RONALD v. WARNER B.G. BANKS

1994, No. MP823

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

____________

_______________

J U D G M E N T

_______________

1. On 13 January 1993, the Coroner's Court completed its Death Inquest No.1/94HK. In the inquisition signed by the jury and the coroner, findings as to when, where and how the deceased met his death were made and a verdict was returned, together with a rider. The cause of death as found was :

"Bilateral pyothorax secondary to perforated oesophagus."

The unanimous verdict returned was :

"Death by accident aggravated by lack of care."

The rider annexed in the form of a recommendation read :

"It is recommended that whenever a medical practitioner examines an X-Ray film, if there is any possible doubt, such X-Ray film should be referred to a diagnostic radiologist."

2. Dr. Ronald Chen Yuk Lun sought and obtained leave for challenging the jury directions given by the coroner, Mr W.B.G. Banks, on the meaning of a "lack of care" verdict and the availability of such a verdict. The applicant focused on the coroner's erroneous directions and applied to quash the inquisition, in particular, the words "aggravated by lack of care" in the verdict. Pursuant to such leave, the applicant applied for judicial review against the coroner in these proceedings.

3. Shortly before the hearing of the application for judicial review, the coroner conceded that he had erred in law in his direction to the jury as to what a lack of care verdict was and he further conceded that there was no evidence that the deceased would have survived had the X-Rays been examined by a specialist radiologist. It is perhaps worthy of note that there was no room in the manner in which the further concession was made for canvassing the opportune time, if any, for conducting such an examination. The coroner was prepared to consent to have the verdict quashed and a fresh inquest held. Counsel for the coroner, Mr Kwok, elaborated on the latter concession made by the coroner : by there being no evidence that the deceased would have survived even if the X-Rays had been examined by a specialist radiologist, what was accepted by the coroner was simply that no such evidence was adduced at the inquest. Moreover, the concession did not touch upon the proper inference, if any, to be drawn from a possible timely specialist examination of the X-Rays. The consultant radiologist, Dr. Cheung Yuk Ling, assisted the jury at the inquest with his opinion on the X-Ray for the lateral view of the neck region of the deceased. The transcript of his evidence on this aspect read :

"There is air shown and swelling. The swelling may indicate swelling. The film shows that something is wrong. I cannot detect a foreign body.

Assuming the patient had complained of swallowing a denture and having seen the X-Rays film then 2 ways

1) Have the patient take some drug.

2) Ask the surgeon to perform an operation.

It is easy for a diagnostic radiologist to detect this swelling but, it may be difficult for a general practitioner to detect such a swelling. An expert should not miss this swelling but, it is quite subtle and may be missed by an ordinary Doctor.

It is better that the X-Rays be referred to a diagnostic radiologist to determine whether the X-Rays are normal or not."

From the vital signs of the deceased as given at the inquest, the proper inference capable of being drawn would seem to be that but for the delay, appropriate and timely treatment would have given the deceased a better chance of, if not a full, recovery.

4. The deceased had been the applicant's patient for some time and he had a long association with the Hong Kong University Department of Psychiatry. The deceased was admitted into the ward of the Hong Kong University Psychiatric Unit at Queen Mary Hospital in September 1992 for treatment, but since mid March 1993 his mental state had deteriorated. "His self-care needed close supervision". The deceased was decidedly in a dependent condition. On 23 March 1993, he reported to the nurses that he had accidentally swallowed his denture. Upon a report made to the applicant, he "ordered urgent neck X-Ray". The x-rays were made available to the applicant after 5 p.m. on the same day, i.e. 23 March 1993. The x-rays were not accompanied by any radiologist report. In the case of "non-urgent x-rays", they would reach the doctor concerned with the radiologist report after one or two days. As the applicant had "wanted to see the x-rays urgently", they were sent direct to the applicant immediately on the same day. The applicant "did not consider that the x-rays excluded the possibility that the patient (had swallowed a denture)". He nevertheless "kept an open mind". On 24 March 1993, the next day, further X-Rays to the chest and abdomen were ordered by the applicant. At the onset of complications, including pain and difficulty in swallowing, the patient was referred to the University Surgical Unit for urgent consultation on 27 March 1993. The patient died on 30 March 1993.

5. On the coroner's concessions, Mr Graham, counsel for the applicant, invited the court to amend the verdict by deleting therefrom the words "aggravated by lack of care" or quash the verdict altogether, but ordering no fresh inquest in either case.

6. Mr Kwok for the coroner directed the court's attention to the absence of an endoscopic examination and/or consultation with a specialist diagnostic radiologist. Mr Kwok submitted accordingly that there was evidence in the transcript fit to go to a jury on "lack of care", free-standing or otherwise. The applicant described the deceased as being in a dependent state. The jury recommended in the rider "that whenever a medical practitioner examine(d) an X-Ray film, if there (was) any possible doubt, such X-Ray film should be referred to a diagnostic radiologist". At the conclusion of counsel's submissions, I agreed with Mr Kwok's contention and acceded to his invitation. I quashed the inquisition, including the verdict and ordered a fresh inquest by another coroner. I said I would give reasons for my decision and these are the reasons I now hand down.

7. In R. v. H.M. Coroner for Birmingham, ex parte Secretary of State for the Home Department, (1991)155 J.P.101, at p.125 Letter B/C, Watkins, L.J. acknowledged in apparent despair that there was no power "to substitute, in appropriate circumstances, for a verdict wrongly returned by jury, one that they must on a proper direction have found". Confined to the decision-making process, it stands to reason why a judicial review court should refrain from attempting to substitute a verdict of its own. These proceedings were commenced against the coroner but wholly detached from any fact-finding function. The court had no power to re-evaluate the evidence considered by the jury. Clearly this court would be an inappropriate forum for the resolution of issues of disputed facts and could not take upon itself to substitute for an alleged wrong verdict, one which must be, in its own attempted evaluation, returned by the jury on a proper direction.

8. It was submitted by Mr Kwok, counsel for the coroner, that the court would have no power to amend the verdict, quashing it in part. Counsel Mr Kwok accepted this court as having power only to set aside the whole verdict but none to amend it. It was not disputed, however, that I had the power to remit the matter to the Coroner's Court with a direction to reconsider it and reach a decision in accordance with the findings of this court, or to enter such verdict as the coroner would consider proper in the light of my judgment. See R. v. Inner London Coroner, ex parte De Luca, [1989]1 QB 249 at 254 Letter F, per Lord Bingham as he now is. In cases where an inquisition was partly quashed, so ran Mr Kwok's argument, a partial deletion by way of amendment would ineluctably have to be called for on account of some determination or concession, involving no re-evaluation of the evidence taken at the inquest. Mr Kwok strongly emphasized the absence of any reported decision in which the verdict itself was amended in part.

9. In R. v. Coroner for North Humberside and Scunthorpe, ex parte Jamieson, Times Law Reports 28 April 1994, the English Court of Appeal echoed, inter alia, the entrenched concept of "lack of care" which included a "failure to provide basic medical attention for a dependent person whose physical or mental condition showed that he obviously needed it". That "in the context of an inquest, lack of care had been correctly described as the obverse of self-neglect" was reasserted by Lord Bingham, Master of the Rolls. The English Court of Appeal expressed the hope that "in future the expression 'lack of care' might for practical purposes be deleted from the lexicon of inquests and replaced by 'neglect'".

10. R. v. Inner West London Coroner, ex parte De Luca, supra. was a case in which the matter was sent back to the same coroner, without an order for a fresh inquest, to enter such verdict as he considered proper in the light of the judgment. The judicial review application in De Luca did not turn on its facts. The deceased shot himself in the head with an air-gun but died more than a year and a day thereafter. It was held that a lapse of more than a year and a day after injury would preclude a coroner's court from returning a verdict of suicide, i.e. the deceased having "self-murdered" himself. Mr Kwok drew my attention specifically to the order made by Bingham L.J., as he then was, for quashing the entire verdict but not amending it. R. v. Inner South London Coroner, ex parte Kendall [1988]1 WLR 1186 was another case where the verdict alone was wholly quashed but not amended. It was exclusively decided there as a matter of law that a recorded verdict of death by acute abuse of a drug was insupportable by death caused by inhaling tippex thinning fluid containing a dissolvent known as trichloroethane. Trichloroethane was simply incapable of being classed as a drug for the purposes of the Coroners Rules 1984. In R. v. St. Pancras Coroner's Court, ex parte Robert Richard Higgins (1988)152 J.P.637, there was no evidence to justify a verdict of unlawful killing. The plainly erroneous verdict alone was wholly set aside, leaving undisturbed in the inquisition the findings as to when, where and how the deceased came by his death. Parker L.J., as he then was, observed that nothing more was required of an inquisition and that with the verdict quashed, the effect was exactly the same as if there had been an open verdict. See p.640 Letter B. In all these cases, the whole of the verdict needed to be quashed. There was no necessity for considering setting aside part of the impugned verdict. In none of these three cases was any direction given for holding a fresh inquest.

11. Mr Graham, counsel for the applicant, leant heavily on the decision in R. v. Walthamstow Coroner, ex parte Rubenstein [1982] Crim.L.R.509 for the power to quash part of a verdict. Glidewell J., as he then was, sitting in the High Court entertained an application under s.6 of the Coroners Act, 1887. The deceased died during his detention at a police station. There was no evidence of causation to link the events at the police station with his death. In quashing the inquest, under s.6 of the 1887 Act, the judge lamented that if the application had been brought under the common law, the High Court would have had "power to delete that part of the verdict which was unsatisfactory". See p.510. Simon-Brown J., as he then was, described in R. v. Inner South London Coroner, ex parte Kendall, supra, at p.1194 Letter A, the court's power to quash an inquisition otherwise than in its entirety as being consistent with the court's "increasing flexibility of response and remedy in the ever-developing field of judicial review". It is difficult to appreciate Mr Kwok's contention that the court's power to quash part of the inquisition would not permit quashing part of the verdict. Part of the verdict must necessarily be part of the inquisition. In R. v. Serrey Coroner, ex parte Campbell [1982]1 QB 661, the court proceeded to amend not the verdict, but the other parts of the inquisition, namely, the cause of death and the rider, by deleting therefrom the words "due to schizophrenia" to reflect the true intention of the jury. The fact that the Divisional Court in Camphell wrongly invoked s.20 of the Coroners Act 1887 which was inapplicable and had been repealed would hardly affect the court's jurisdiction to carry into effect its conclusion under the common law. In Campbell, the Attorney General had refused to authorise the bringing of proceedings under s.6 of the Coroners Act, 1887. See p.662 Letter E. In R. v. H.M. Coroner for Inner North London, ex parte Greggory Linnane (1991)155 J.P.343, the inquisition was amended to remove the inaccuracies it contained, including errors in the date of death and the date of birth. In Linnane, no new inquest was directed for its special circumstances. There was a lapse of 21 months in that case and the medical issues were difficult but not commanding enough to justify a fresh inquest. Moreover, there was little evidence from any source to show that there was want of care causing death. See p.351 Letter E-F. In R. v. South Powys Coroner's Court, ex parte Jones [1991] C.O.D. 1-76 at p.14, the Divisional Court was quoted as having held, in quashing the inquisition, that "there had been some development whereby the court had quashed a part of an inquisition while allowing the remainder to stand". Can it be reasonably argued that any part of a verdict is not a part of an inquisition?

12. To recapitulate : on an application for judicial review, the court has no power to substitute its own verdict which, in the court's view, the coroner's Jury could not have failed to return on a proper direction. In supervising the decision-making process, the court must not feel free to usurp the functions of the coroner's court under review. See Birmingham, supra. However, for admitted or found errors, the court is entitled to quash part of an inquisition. The entire jury's verdict returned in an inquisition was thus quashed in De Luca, supra. The same happened in Kendall, supra. In Higgins, supra., the verdict was alone set aside in an inquisition leaving intact the findings as to when, where and how the deceased met his death. These cases are examples of amendments made to part of the inquisition, resulting in the quashing of the whole of the verdict. The inaccuracies on the face of the record in parts of the inquisition may also be amended. See Linnane, supra. But there is no warrant for limiting the court's power to quash part of the inquisition to quashing the verdict only in its entirety. Part of the verdict is evidently also part of the inquisition. Indeed, in Rubenstein, supra, Glidewell J., as he then was, took the view that "under the common law the High Court had power to delete that part of the verdict which was unsatisfactory." The ever-developing judicial review provides increasing flexibility. See Kendall, supra. In Campbell, supra., the cause of death and the rider in the inquisition were amended by deleting therefrom the words "due to chizophrenia". A rider contains generally recommendations, flowing from the jury's verdict. It is inconceivable that while a rider to a verdict could be quashed in part, the verdict itself may not be similarly attacked. In my judgment, the court has power to quash, in proper circumstances, part of the verdict.

13. I turn next to consider whether the court's power so to amend the verdict in part as gleaned from these cases can be better illustrated by the common law. In Campbell, supra, the Divisional Court dealt with the common law powers of the High Court in judicial review. See p.672 B - p.675 Letters C/D. Before s.6 of the Coroners Act 1887, the High Court's power to control a coroner's inquest derived from the common law. At common law, the courts in the King's Bench Division could initially intervene only if the inquisition was bad on the face of it, or frand was alleged. The courts could not then interpose on account of alleged misdirection. But the courts soon also assumed power to intervene if the coroner had exceeded his jurisdiction in the sense that he had brought in a verdict unknown to law or if he had declined jurisdiction without cause. See p.672 Letter E. Section 6 of the Coroners Act 1887 invested the court with a much wider power to quash an inquisition. The court's extended power to supervise under the statute would arise if a coroner wrongfully refused or neglected to hold an inquest, or in cases where a further inquest should be held by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, or otherwise if it was necessary or desirable in the interests of justice. But such wider statutory power conferred by s.6 of the 1887 Act could not be exercised except by or under the authority of the Attorney General. Then came the decision in the House of Lords, Anisminic Limited v. Foreign Compensation Commission [1969]2 AC 147, whereby a misdirection by a tribunal was regarded as a matter going to jurisdiction. The Division Court in Campbell refused to extend the Anisminic principle to any inferior courts of law. Thus, the coroner's courts did not enjoy the extension provided by Anisminic. But a differently constitnted Divisional Court in R. v. Greater Manchester Coroner, ex parte Tal (1985) QB 67 held that Campbell was wrongly decided on this issue. After Tal, the Anisminic principle was recognised as applicable to the coroner's courts, hence extending the common law powers of the High Court to interfere with an inquest to cases of misdirections. See paras.19/17 to 19/20 at pp.349-351 of Jervis on Coroners, 11th edn. and paras.23.02 to 23.17 at pp.167-173 of Thurston's Coronership, 3rd edn. Thurston puts the possible challenge of an inquest under three separate heads, namely, the common law, the statute viz. the Coroners Act 1887, s.6 and O.53, R.S.C. Under O.53, R.S.C., the High Court enjoys the same common law powers. Therefore in an application for judicial review, the High Court may question the inquest on the grounds of an error on the face of the record, or frand, or excess of jurisdiction in the sense that the verdict is one not permitted by law or that the coroner refuses jurisdiction without cause. The High Court may now also intervene by reason of any misdirection.

14. Examination of the common law powers of this court in judicial review has not provided me with clearer guidance than what I have derived from the above decisions. In my view, this court has power to quash the verdict in part as invited by Mr Graham.

15. The final analysis must be whether such power should be exercised by merely deleting the words "aggravated by lack of care" from the returned unanimous verdict. For the evidence in the transcript relied upon by Mr Kwok and the recommendation made by the jury in the rider, want of a fresh inquest would leave a distinct impression of an incomplete investigation, particularly in the light of the acknowledged erroneous direction on "lack of care". The reconvened proceedings in the fresh inquest were not expected to take much more than half a day, the time consumption of the former inquest. No great public expense would likely be further incurred. It was not suggested that any material witness would be unavailable. There was no inordinate delay. Justice demanded a full investigation. The discontent of the family of the deceased, and perhaps also the public at large without a proper inquest would outweigh any renewed distress possibly caused by the fresh proceedings. It would therefore be futile to accede to the request of Mr Graham by merely quashing part of the returned verdict when a fresh inquest was to be ordered. I would certainly have wished to hear family members of the deceased if I had hesitated to take the course I did at the hearing.

16. I ordered certiorari to remove the proceedings into this court for the purpose of quashing them and I directed that the proceedings be quashed forthwith on their removal into this court. I ordered the inquisition to be quashed with a direction that a new inquest by another coroner be commenced.

17. With the latest decision of the English Court of Appeal in R. v. Coroner for North Humberside and Scunthorpe, ex parte Jamieson, supra., all misgivings as to "lack of care" can now be laid to rest.

18. Skeleton arguments have been the norm in judicial review applications. Extra judicial time and effort were involved in these proceedings, and it is hoped that counsel would appreciate the need for skeleton arguments in the future.