YIP SAU CHING v. SECRETARY FOR JUSTICE AND ANOTHER

[English translation – 英譯本]
HCMP 1911/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1911 OF 2009

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J U D G M E N T

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1.  The plaintiff instituted this action in order to have the finding made by the Coroner’s Court as to the cause of the death of her mother Madam Chan So Heung (“Madam Chan”) quashed.

2.  The plaintiff was not legally represented when she commenced this action.  She wrongly made her application by using a Notice of Originating Motion.  On 25 November 2009 I allowed the plaintiff to change the Notice of Originating Motion to an Originating Summons and to join the Secretary for Justice as one of the defendants.

Background facts

3.  Facts related to this action can be summarized as follows.

4.  Madam Chan was born on 19 November 1938.  She and her husband Mr. Yip Kam Choi have 4 daughters and the plaintiff is their youngest daughter.

5.  In 1993, Madam Chan was diagnosed to be suffering from kidney disease.  In February 1994, she began to receive renal dialysis.  In 1996, she contracted epilepsy and diabetes.  In 2003, she had symptoms of diastolic dysfunction.  When Madam Chan was going through all these, she was repeatedly admitted to Princess Margaret Hospital for medical treatments.

6.  In March 2004, owing to cerebral infarction (commonly known as ‘having a stroke’), Madam Chan was once again hospitalized in Princess Margaret Hospital.  Because of persistent demands made by her family members, Madam Chan was discharged on 20 March 2004 and she went to Macau to seek treatment. Subsequently, she returned to Hong Kong from Macau and continued to receive follow-up treatment at Princess Margaret Hospital.

7.  On 23 March 2005, Madam Chan was admitted to Princess Margaret Hospital due to excessively high level of blood sugar.  Later, her blood sugar condition came under control. The peritoneal dialysis fluid (commonly known as ‘belly rinsing fluid’) was clear and in general, her vital signs remained stable.  During this period of time, she had been given the antibiotic Augmentin through intravenous injection.

8.  In the morning of 27 March 2005, Madam Chan’s condition changed.  At about 7:10 a.m., she was found to have high fever, desaturation and was suffering from shock.  The peritoneal dialysis fluid was turbid.  Oxygen and intravenous normal saline were given to her.  At 08:15, the duty doctor found that Madam Chan had low blood pressure and was in an impaired conscious state, so he carried out emergency treatment.  At 08:35, the duty doctor inserted an endotracheal tube into her windpipe, put her on ventilator support and administered an intravenous inotropic agent to her to stabilize her blood pressure.  He also gave instruction to stop giving her Augmentin injection and a stronger antibiotic Tazocin was used instead.  Madam Chan was in critical condition and the dosage of the inotropic agent steadily increased.  At about 3 p.m., her blood pressure was still on the low side, so one more inotropic agent, namely Adrenaline, was administered to her.  At 4:45 p.m. Madam Chan received injections of the antibiotic Tazocin. At 6:05 p.m., resuscitation measures were taken because she had bradycardia. However, at 7:10 p.m., she had cardiac arrest.  Efforts at resuscitation were of no avail and she was certified dead at 7:48 p.m..  3 days later, the peritoneal dialysis fluid culture result showed that the fluid contained the bacterium pseudomonas aeruginosa.

9.  On 30 March 2005, Dr. William Lee issued a Medical Certificate of the Cause of Death (commonly known as ‘death certificate’) in respect of Madam Chan; in the Cause of Death column of which the ‘Disease or condition directly leading to death’ was said to be peritonitis, while ‘Other significant conditions contributing to the death, but not related to the disease or condition causing it’ were end stage renal failure, ischaemic heart disease, diabetes mellitus, old cerebrovascular accident, epilepsy and congestive heart failure.

10.  Before Dr. Lee issued the death certificate, he had a meeting with Madam Chan’s family members, including the plaintiff.  Dr. Lee explained to them the cause of Madam Chan’s death and suggested that if they wanted to know what caused the peritonitis, they could have an autopsy performed on the dead body of Madam Chan, but Madam Chan’s family members unanimously opposed to post-mortem examination.  The plaintiff and Madam Chan’s family members were all present when Dr. Lee issued the death certificate.

11.  Subsequently, the plaintiff and other family members complained to various authorities and people, including the Hospital Authority and some Legislative Council members, that Madam Chan died because of inappropriate medical treatment.  The plaintiff sought help from the Legal Aid Department and the Bar Free Legal Service Scheme.  They respectively engaged Professor Lai Kar Neng and Dr. Ho Chung Ping to write an expert report on the medical treatments provided to Madam Chan, and each of them submitted one report.  Both Professor Lai and Dr. Ho gave evidence as experts during the inquest, and their reports were produced as exhibits.

12.  On 31 December 2006, the plaintiff wrote to the Coroner, asking for an inquest to be held to inquire into the cause of Madam Chan’s death.  The Coroner’s Court held such an inquest from 21 to 23 April 2008.  A total of 10 witnesses were called.  They were Madam Chan’s husband and her 4 daughters, 3 doctors of the Princess Margaret Hospital who had given medical treatments to Madam Chan and the two expert doctors, namely Professor Lai and Dr. Ho.  The jury unanimously found that Madam Chan died from natural causes, and that the diseases which led to her death were: (I) peritonitis, (II) end stage renal failure, (III) ischaemic heart disease, (IV) diabetes mellitus, (V) old cerebrovascular accident, (VI) epilepsy and (VII) congestive heart failure.

Grounds of application

13.  The plaintiff commenced this action on 25 September 2009, asking the court to quash the finding made by the Coroner’s Court.  She filed 4 affidavits in succession to support her application.  The Secretary for Justice, after he joined in this action, also filed an affidavit to give additional information about certain matters and to reply to certain allegations in the plaintiff’s affidavits.

14.  In her affidavits, the plaintiff referred to a lot of matters and made 9 main complaints as follows:

(1) The identities of the witnesses who appeared in court were false; the Dr. Choy Chi Chung who testified at the inquest was not the Dr. Choy who was present in the ward of the hospital;

(2) There were false documents among the court documents —

(a) The Coroner’s Court could not produce the report submitted by Dr. Ho Chung Ping at the inquest; and

(b) The transcript of the audio recording of the course of the inquest was fake;

(3) The Coroner deliberately led the jury to reach certain conclusions, so that the fairness of the inquest was prejudiced;

(4) The hospital failed to produce a list of the medicines, the records of the dispensary, X ray examination reports or the death report dated 30 March 2005;

(5) The plaintiff was treated unfairly in that at no time during the inquest could she read the statements of the opposite party or the expert reports;

(6) When the ventilator was being set up, no doctor was present: The records made by the nurses were strong evidence of this;

(7) Dr. Chu Kwok Hong did not examine Madam Chan: The laboratory test document was ironclad proof;

(8) The hospital did not even provide the most basic treatment to a dying patient; and

(9) Throughout the day on which Madam Chan passed away, she had not been examined or treated by any formally qualified doctor.

15.  At the hearing in this Court, Ms. Lo, counsel for the plaintiff, organized the plaintiff’s grounds of application into the following 6 grounds:

(1) The Coroner should not have refused the plaintiff’s application for adjourning the inquest;

(2) The Coroner interjected and prevented the plaintiff from cross-examining the witnesses about the circumstances surrounding the administration of the antibiotic Tazocin;

(3) The Coroner deliberately led the jury to reach certain conclusions by repeatedly reminding them that—

(a) The plaintiff gave inconsistent evidence;

(b) The pneumonia, contracted accidentally as a result of the endotracheal intubation carried out during the setting up of the ventilator, would not be shown on the X-rays; and

(c) The expert evidence given by Dr. Ho showed that endotracheal intubation was safe and that it would not lead to pneumonia.

(4) Before the inquest, the plaintiff did not receive all the documents [which would be] produced at the inquest, including Professor Lai’s report and she did not know that Professor Lai would give evidence as an expert witness;

(5) Dr. Chu Kwok Hong was not called to give evidence at the inquest; and

(6) Madam Chan was not given proper medical treatments, [in particular,] the hospital did not

(a) provide her with any oxygen mask or ice pack;

(b) properly monitor her bodily changes; or

(c) make sure that the peritoneal dialysis fluid administered to her was at the right temperature.

Coroners Ordinance, Cap. 504 Laws of Hong Kong

16.  Ms. Lo confirmed that the plaintiff made the application under section 20(1)(b) of the Coroners Ordinance, Cap. 504, Laws of Hong Kong.  Section 20(1)(b) provides that:

“20. Power of Court of First Instance to order inquest

(1) Where the Court of First Instance, upon the application in open court of a properly interested person or the Secretary for Justice, is satisfied —

(a) ……

(b) where an inquest has been held by a coroner, that by reason of fraud, rejection of evidence, irregularity of proceedings (including a failure to comply with section 14(3)), insufficiency of inquiry, or otherwise, it is necessary or desirable that another inquest should be held;”

[sic]

17.  As for the purpose of the inquest, it is laid down in section 27 that:

“27. Purpose of inquest

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, 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.”

18.  It is further stipulated in Section 44(1) and (3) that:

“27 [sic]. Civil liability, etc.

(1) Neither a coroner nor a jury at an inquest shall—

(a) frame a finding in such a way as to appear to determine any question of civil liability;

(b) subject to subsection (2), express an opinion on any matter other than a matter referred to in section 27.

(2) ……

(3) A coroner at an inquest shall disallow a question which in his opinion—

(a) relates only to civil liability;

(b) is not relevant; or

(c) is otherwise not a proper question.”

Discussion

19.  The plaintiff’s first ground of application was that the Coroner should not have refused her application for adjourning the inquest.  The plaintiff made the application for adjournment on the first day of the inquest.  The reason she proffered was that she intended to arrange for a pro bono barrister to appear at the inquest.  The plaintiff produced a letter issued by the Bar Free Legal Service Scheme, dated 16 April 2008, which showed that the Scheme was discussing with a barrister surnamed Tang [transliteration of 鄧] about providing free legal service to the plaintiff, but whether Mr. Tang could help was dependent on whether there was any time available in his diary; and the plaintiff was asked to confirm whether it was the case that she did not need further assistance from the Scheme.

20.  It was for the Coroner to decide by exercising his discretion whether the application for adjourning the inquest should be granted.  Having considered the following 3 matters, the Coroner refused the plaintiff’s application: (i) The Coroner’s Court did not receive any notice from Mr. Tang that he was willing to provide free legal service to the plaintiff or any request from him for adjourning the inquest.  Indeed, there was no indication in the letter from the Bar Free Legal Service Scheme that Mr. Tang had agreed to help.  (ii) The date for the inquest was fixed by the Coroner’s Court over one month before.  Notice had been sent to the family members and all people concerned, and arrangements were made for the experts to appear at the inquest.  Furthermore, the selected jurors had already been empanelled and sworn in.  That being so and particularly when it was not certain whether Mr. Tang would act for the plaintiff, adjourning the inquest would be contrary to the principle of legal justice.  (iii) The nature of an inquest into the death of a person is different from that of other proceedings in that one party is not considered to be the adversary of the other party.  The Coroner, with the assistance of a coroner’s officer, inquire into the cause of a person’s death.  Therefore, the absence of legal representation of the plaintiff and the family members of Madam Chan would not result in their rights and interests not being protected.

21.  I find that the Coroner had fully considered all relevant factors and had properly exercised his discretion.  His refusal to adjourn the inquest was not an irregularity in the proceedings.

22.  The plaintiff’s second ground of application was that the Coroner did not allow her to question the witnesses, particularly Dr. Lee, about the circumstances surrounding the administration of the antibiotic Tazocin to Madam Chan.  Counsel for the Secretary for Justice enumerated in table form in his written submission the instances where the Coroner intervened when the plaintiff was asking questions: see para. 61.  Ms. Lo, counsel for the plaintiff, did not dispute the accuracy of this table.  I have read the relevant parts in the transcript of the audio recording of the inquest and I agree that the Coroner’s interruption of or intervention in the plaintiff’s questioning of the witnesses was only for the purpose of clarifying the questions; or, when the plaintiff was repeatedly asking the same questions, explaining to her that she did not need to do so; or pointing out to her that her questions were not proper questions.  The Coroner did not arbitrarily or unreasonably prevent the plaintiff from cross-examining Dr. Lee or other witnesses, so there is no question of there being any irregularity in the proceedings.

23.  The third ground of application of the plaintiff was that the Coroner repeatedly reminded the jury of matters in 3 areas, tendentiously led the jury to make a particular finding.  Firstly, she averred that in the summing up, the Coroner remarked that when she described what happened to Madam Chan, “Sometimes she said her face turned dark; sometimes she said her whole body turned dark”; and that was an implicit comment that her evidence was unbelievable.  The plaintiff’s evidence given on that day about the condition of Madam Chan was “The whole body of my mother became dark” (line D, p. 48 of the transcript).  When being asked how she came to know that there was some problem with the ventilator, and whether she came to know that because she saw that the face of Madam Chan turned dark, the plaintiff answered, “Not her face; the whole of her became dark.”  (line E, p. 54 of the transcript).  However, in the summing up, the Coroner said that according to Madam Chan’s daughter, her mother “all her face turned dark and sometimes she said all her body turned dark” (lines G-H, p. 5 of the transcript of the summing up).  It is true that the Coroner’s summing up in this area was not entirely correct, but this point alone did not constitute an adverse comment on the trustworthiness of the plaintiff, nor was it an implicit comment that her evidence was unbelievable.

24.  Secondly, the plaintiff complained that the Coroner repeatedly said that the pneumonia, contracted accidentally as a result of the endotracheal intubation carried out during the setting up of the ventilator, would not be shown on the X-rays.  As a matter of fact, what the Coroner said in the summing up was that there was no medical evidence produced at the inquest which supported the possibility that the cause of Madam Chan’s death was the endotracheal intubation, or the malfunction of the ventilator, or pneumonia as the immediate result of the malfunction of the ventilator (line H-J, p. 7 of the transcript of the summing up).  The Coroner’s summing up was a correct reflection of the state of the evidence produced or given at the inquest.  Dr. Choy Chi Chung gave evidence that usually the symptoms of pneumonia contracted through the ventilator would not appear immediately, but would appear only several days after the use of the ventilator.  He also clearly indicated his disagreement over the proposition that Madam Chan’s lungs suffered from bacterial infection as a result of the endotrachial intubation (lines K-L and P-Q, p. 94 of the transcript).  Dr. Ho Chung Ping’s evidence also refuted the argument that if anything went wrong in the course of the endotracheal intubation, the patient might contract pneumonia 10 to 15 minutes later (line G-I, p. 106 of the transcript).

25.  Thirdly, the plaintiff alleged that the Coroner repeatedly told the jury that endotracheal intubation was safe and that it would not cause death.  However, I could not find any record to this effect in the transcript of the summing up or the transcript of the directions to the jury.  What the Coroner did was just that when Dr. Ho was in the witness box, he asked him for his comment on the view held by Madam Chan’s daughter, i.e. something went wrong in the course of the endotracheal intubation and that immediately led to pneumonia, which in turn was the cause of death.  Dr. Ho’s answer was that if the endotracheal tube was mistakenly inserted into the oesophagus, death would follow; but other than that, there was no danger attendant on endotracheal intubation; and that the benefits brought about by this procedure were that the trachea and the lungs would thereby be protected.  (line S p. 105 – line B p. 106).

26.  The Coroner did not improperly or partially lead the jury to make any finding.  This ground of the applicant is not substantiated.

27.  The applicant’s fourth ground of application was that neither she nor her family members received all the documents, statements and expert reports before the inquest.

28.  Concerning the supply of witness statements, section 13(1) of the Coroners Ordinance provides as follows:

“13. Supply of witness statements, etc.

(1) Where—

(a) a coroner has decided that he will hold an inquest into the death of a person;

(b) a witness statement or medical or technical report—

(i) relates to the death; and

(ii) is in the possession or control of the coroner; and

(c) a properly interested person makes a request to the coroner—

(i) to be supplied with a copy of the statement or report; and

(ii) before the inquest into the death,

the coroner shall comply with the request.”

29.  In this case, after the Coroner decided to hold an inquest, the clerk to the Coroner sent a letter to the plaintiff on 26 March 2008, notifying her that if she was minded to request to be supplied with any documents, she should make the request not less than 21 days before the inquest.  The plaintiff made the request on 16 April (that was 5 days before the inquest), and subsequently the clerk supplied her with all the documents.  On 16 April, the third report of Dr. Lee, which was dated 17 April 2008, was not yet available.

30.  As for the expert report written by Professor Lai, it was originally written for the Legal Aid Department.  Initially, Professor Lai objected to automatically disclosing it to the husband of Madam Chan.  For that reason, when Mr. Yip Kam Choi asked for the report on behalf of the family members of Madam Chan, the Legal Aid Department forwarded Professor Lai’s letter to him as an explanation of their position.  When the plaintiff asked the Coroner’s Court on 16 April 2008 for the supply of the documents, she did not ask for the expert report of Professor Lai, so the court clerk did not supply it to her.  These circumstances disclosed no contravention of section 13(1).

31.  In addition, during the inquest, both the third report of Dr. Lee and the report of Professor Lai had been read out in Chinese.  Dr.Ho Chung Ping, who was appointed under the Bar Free Legal Service Scheme, had read Dr. [sic] Lai’s report before he gave evidence, and had the opportunity to air his views on some of its contents.  Under these circumstances, although these reports were not supplied to the plaintiff or the family members of Madam Chan during the inquest, that did not constitute any irregularity in the proceedings or any unfairness in the inquest.

32.  The plaintiff’s fifth ground of application was about the failure to call Dr. Chu Kwok Hong to give evidence.  The plaintiff’s case was that Dr. Chu did not examine or give any treatment to Madam Chan on 27 March 2005, but Dr. Lee testified that on the morning of that day when Dr. Chu was on his ward rounds at the nephrology department, he did examine Madam Chan.  When being questioned by the daughter of Madam Chan, Dr. Lee further said that when he was making his rounds of the wards, he saw the record and instructions written down by Dr. Chu on the medical record of the patient (commonly known as “instruction board”) (line S-T, p. 87 of the transcript).  The plaintiff argued that in that case, Dr. Chu should have been called to give evidence at the inquest.

33.  In my judgment, when a Coroner is deciding whether any person should be called as witness, he must consider whether the evidence which that person would give has an important and close relationship with the subject-matter of the inquest.  With this as the basis of his consideration, he must also have regard to the fact that by virtue of section 27, the inquest can be conducted only in defined parameters.  Of particular importance is the requirement that the inquest must focus on matters directly causative of death, what should not be done is to embark on a wider inquiry relating to the background and the broad circumstances of the death.  It is not the function of the inquest to provide the answers to all the questions related to the death which the family members of the deceased may wish to raise.  Therefore, the Coroner should call as witness only those who can give evidence as to the cause of the death, and should not call as witness those who can give evidence only about the background or the broad circumstances of the case: see In the matter of an application by Bradley for Judicial Review (Unreported, 29 August 1996) Lexis Nexis KERE 2186 (Transcript); R v HM Coroner for West Berkshire, ex parte Janet James 155 JP 681.

34.  The doctors who had taken part in examining and giving treatments, including emergency treatment, to Madam Chan on 27 March 2005 included Dr. Lee, Dr Choy, Dr. Chu, Dr. Yuen [transliteration of 袁] and Dr. Ho Po Ki.  Dr. Lee was the doctor in charge of Madam Chan’s case; Dr. Choy carried out endotracheal intubation for her while Dr. Ho gave emergency treatment to her.  All 3 of them testified at the inquest.  Dr. Chu and Dr. Yuen had taken part only in examining Madam Chan.  Neither of them testified at the inquest.

35.  At the inquest, the disagreements or complaints made by the family members centred around at what time the antibiotic Tazocin was administered to Madam Chan, whether anything went wrong in the course of the setting up of the ventilator and the insertion of the endotracheal tube and whether pneumonia was caused as a result.  Dr. Chu did not participate in any of these procedures at all.  The plaintiff disputed whether Dr. Chu had examined Madam Chan, but this issue was not directly related to the cause of Madam Chan’s death.  At most, it only had something to do with the broad circumstances of the case.  Moreover, the plaintiff’s affidavits did not show that Dr. Chu could give material evidence relevant to the purpose and subject-matter of the inquest.  Under these circumstances, the fact that Dr Chu was not called as witness was not an irregularity in the proceedings, nor did it constitute a reason for quashing the finding.

36.  The sixth ground of application of the applicant was that Madam Chan was not given proper medical treatments on the day when she passed away.  The particulars she enumerated, including the allegation that no formally qualified doctor had examined or treated Madam Chan, were all directed at the quality of the medical treatments provided by the hospital.  However, under section 27 of the Ordinance, it is not the purpose of the inquest to ascertain the quality of the medical treatments provided.  Besides, as section 44 made clear, an inquest is not supposed to determine questions relating to civil liability or to who should be blamed: see Pang Siu Kuen v Coroner [2007] 4 HKLRD 696, para. 26-32.

37.  This ground of application must fail.

38.  As regards other complaints made by the plaintiff in her affidavits (see items (1), (2), (4) and (6) inpara. 14 above), since they were not covered in Ms. Lo’s written submission, I am not going to dwell on them.  I will just comment briefly on 2 of the plaintiff’s allegations: that Dr. Ho Chung Ping cited and submitted his second expert report at the inquest, but the Coroner’s Court could not produce that particular report; and that the transcript of the audio recording of the course of the inquest was fake.  First of all, it can clearly be seen from the transcript of the audio recording that at the inquest Dr. Ho submitted only one report, which was dated 16 May 2007.  Dr. Ho had only read Professor Lai’s report.  Apart from that, what Dr. Ho said at the inquest was different from what was recorded in the Plaintiff’s affidavits and alleged to be Dr. Ho’s evidence.  As stated by the Secretary for Justice, the plaintiff misunderstood Dr. Ho’s evidence, so that she mistakenly thought that Dr. Ho submitted a new report at the inquest.  Another allegation made by the plaintiff was that the Coroner had admonished her but that such words of admonition disappeared from the content of the transcript of the audio recording.  I must point out that the technology of digital recording is utilized in the audio recording of court proceedings and the transcript is a verbatim record of the audio recording.  The procedures and technology involved are not simple at all.  Besides, the people responsible for preparing the transcript are professionals who have no connection with this case.  Whether the digital recording has been tampered with can be ascertained through proper procedures.  The Chief Magistrate, in his reply letter to the plaintiff dated 27 July 2009, explained that the plaintiff’s allegation that the transcript was fake was impossible, and I agree.  What happened here was that the plaintiff compared what she remembered about the inquest with the content of the transcript of the audio recordingand, without anything more, concluded that something was omitted from the transcript.  However, it was shown from some instances that the plaintiff’s memory of what evidence had been given at the inquest was not entirely reliable and accurate.

39.  To sum up, the plaintiff’s grounds of application and the affidavits she submitted failed to show that the inquest into the cause of the death of Madam Chan was affected by fraud, rejection of evidence, irregularity of proceedings or insufficiency of inquiry, or there are other reasons, so that it is necessary or desirable that another inquest should be held.  As to the necessity or desirability to hold another inquest, I accept the submission made by the Secretary for Justice: In the circumstances of this case, even if there is a new inquest, the result would be the same, therefore it is not necessary to hold a new inquest: see Jervis on the Office and Duties of Coroners (12^th edition) para. 19-12.

Conclusion

40.  On the basis of the above analysis, I dismiss the originating summons of the plaintiff.

41.  The plaintiff and the Secretary for Justice have agreed that they will not claim for costs against each other, so I do not make any order as to costs of this action.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.