MO KAM TONG STANLEY v. THE CORONER OF HONG KONG

[English Translation – 英譯本] 
CACV 324/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.324 OF 2006

(ON APPEAL FROM HCAL NO.71 OF 2006)

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JUDGMENT

Hon Cheung JA (giving the judgment of the Court):

The appeal heard afresh by the Court of Appeal

1. The applicant Mr Mo Kam Tong Stanley is the son of Mr Mo Wai Ming (“Mr Mo”) who passed away on 19 February 2004.  From 23 to 26 May 2005 and on 30 May 2005, the Coroner’s Court conducted an inquest as to the cause of Mr Mo’s death.  On 30 May 2005 the jury returned a unanimous verdict that Mr Mo died of natural causes, namely multiple organ failure arising from cerebral hypoxia.

2. On 24 June 2006 (i.e. more than one year after the aforesaid verdict was given), the applicant applied to the Court of First Instance for leave to seek judicial review of the Coroner’s Court’s verdict.  He sought to have that verdict set aside and a fresh inquest held as to the cause of Mr Mo’s death.

3. The application was heard on 28 August 2006 by Chu J, who delivered judgment on 7 September 2006 dismissing the application.

4. The applicant appealed to the Court of Appeal.  The two judges who heard the appeal came to opposite conclusions, with Yuen JA dismissing the appeal and Yam J allowing the appeal.  It was therefore necessary for the case to be heard afresh by a full Court of Appeal comprising three judges.

Background of the case

5. Mr Mo was born on 30 March 1926.  He received treatment at United Christian Hospital on 2 July 2002 for breathing difficulties and was referred to Haven of Hope Hospital on 23 August 2002 for treatment.  Mr Mo suffered from persistent breathing difficulties during his stay at Haven of Hope Hospital, and therefore the doctor operated on him by making a small hole in his throat to facilitate the supply of oxygen.  At night time, Mr Mo had to be assisted in breathing by an artificial breathing apparatus (BiPAP).

6. Dr Chow Chee Wung of Haven of Hope Hospital prepared a medical report on 14 November 2003, in which he mentioned that Mr Mo’s cardiopulmonary function had stopped repeatedly during his hospitalization, the first time on 28 December 2002, and the second time on 4 March 2003.  On 1 August 2003, Mr Mo was found to be suffering from hypoxia.  Mr Mo’s wife was informed accordingly and she met the hospital authorities on 2 August 2003.  Mr Mo suffered from breathing difficulties and hypoxia again on the evening of 26 August 2003, and since then he had been assisted in breathing 24 hours a day by BiPAP.  On 27 August 2003, the hospital informed Mr Mo’s wife that Mr Mo’s condition had begun to deteriorate.  At 6:32 a.m. on 28 August 2003, a nurse found that Mr Mo’s cardiopulmonary function had stopped and he was in a coma.  Following emergency treatment by doctors and nurses, Mr Mo’s heartbeats and pulses resumed, but he was still in a coma.

7. Mr Mo remained comatose and was certified dead on 19 February 2004.  The autopsy report stated that Mr Mo suffered from cerebral atrophy and extensive losses of brain tissues.  The report concluded that Mr Mo died from multiple organ failure caused by cerebral hypoxia.

8. Some time in September 2003, Mr Mo’s family found two unsigned and undated letters by the side of Mr Mo’s bed.  One of the letters reads as follows:

Good morning, Doctor,

I have been receiving treatment here for almost a year.  I am grateful to the doctors for their care and concern and to the nurses for taking care of me at night, and the year has passed peacefully.  Curiously, these two weeks there is a new nurse, and actually we do not know each other, but in the small hours last night, (i.e. at around 1 a.m., after I pressed the emergency alarm bell once, she came in to check out on me.  She only uttered one sentence, but did not talk to me or extract [phlegm from me],) then she left.  I was perplexed as I did not know whether she was going to extract [phlegm from me], and hence I pressed the bell again.  However, she made a topic out of this and said I pressed the bell again, and then took away the bell.  She took away the bell at 1 a.m. and did not allow me to use it.  It was not until 7 a.m. that she hung the bell back at where it originally was, but still she did not extract phlegm from me, …: I feel sorrowful. I am a sick person, and my right leg is preventing me from walking.  She is very callous, as if she had passed a death sentence on me.

9. In the other letter which is shorter, Mr Mo also mentioned that a nurse who was a newcomer had taken away his emergency alarm bell and had not extracted phlegm from him.  Government laboratory tests confirmed that the letters were written by Mr Mo himself.

10. Furthermore, the applicant discovered that the page number of one of the pages (i.e. 27-28 August 2003) in Mr Mo’s medical records supplied by Haven of Hope Hospital was not in sequence with the preceding and following pages.  The relevant page contains the following entry:

The patient pressed the bell at 0623 hours on 28/8/03.  I was informed by the medical attendant who had responded to the bell.  [I] arrived at the side of the patient’s bed at 0625 hours and observed that the patient looked pale with a darkish red complexion, his breath was shallow and slow and his limbs were cold …

11. The applicant took the view that the records were forged.  He lodged a complaint to Haven of Hope Hospital and the Hospital Authority with the assistance of a Legislative Councillor.  The Public Complaint Committee of the Hospital Authority also intervened and investigated the incident.  Initially, Haven of Hope Hospital denied that the relevant records had been tampered with.  However, in a letter to the applicant on 16 April 2004, the Hospital admitted that the abovementioned page of the medical records had been tampered with, and that the officers who had tampered with the records had acted improperly and committed a serious procedural error.  The Hospital went on to indicate that the matter would be reported to the Coroner’s Court and the Nursing Council of Hong Kong, and that the nursing officers who had tampered with the records would be subject to disciplinary proceedings.  The Hospital apologized to the applicant for the matter.

12. The applicant reported the matter to the police.  On 6 September 2004, the Department of Justice notified the applicant that, having reviewed the evidence and relevant legal opinions, it had come to the conclusion that no criminal legal proceedings should be initiated against any person.

13. The applicant harboured doubts as to why Mr Mo became comatose on 28 August 2003.  He suspected that Mr Mo fell into a coma as he was unable to summon help after his emergency alarm bell had been taken away.

14. After the inquest concluded, the applicant lodged a complaint to the police against Haven of Hope Hospital on 1 November 2005, again with the assistance of a Legislative Councillor.  He claimed that the signatures on the medical records — namely, the signatures of Dr Chow Chee Wung, Mr Mo’s attending doctor, in the entries of 26 and 28 August 2003 — were forged.  He also challenged the authenticity of the entry made by a nurse on 28 August 2003.  Furthermore, the applicant queried why a nurse surnamed Tso, who in his belief was the nurse referred to in Mr Mo’s letter who had taken away his emergency alarm bell, did not attend the inquest and give evidence thereat.

15. In a reply to the applicant on 7 April 2006, the police pointed out that between July and December 2003, there were two doctors at Haven of Hope Hospital who shared the same initials C.W. Chow.  One was Dr Chow Chee Wung, Mr Mo’s attending doctor, and the other was Dr Chow Chi Wing, a doctor-in-residence.  Dr Chow Chi Wing had confirmed with the police that the entries on the pages queried by the applicant were written by him and the signatures on those pages were his.  The police also pointed out that the entry on 26 August 2003 was made and signed by Dr Chow Chi Wing and the nurse surnamed Tso.  The police also explained in the letter that, as far as the calling of witnesses was concerned, the Coroner’s Officer would study the case and make such decisions as were appropriate in the circumstances of the case.  As regards the applicant’s allegation that the evidence given by the nursing staff at the inquest was incredible, the police replied that the Coroner had already directed and reminded the jury to consider the credibility of the evidence of the witnesses before arriving at a verdict.

Chu J’s reasons for decision

16. Chu J refused to grant leave to the applicant on two grounds:

(1)              The applicant’s application for leave to judicial review was time-barred;

(2)              The grounds put forward by the applicant in purported support of the application were not potentially arguable.

(1)     Limitation Period

17. The application in question was made more than one year after the Coroner’s Court made its ruling on 30 May 2005.

18. Order 53 Rule 4 of the Rules of the High Court provides that:

An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.

19. The Rule also provides that the court can extend the period within which the application shall be made if it considers that there is good reason for doing so.

20. On the applicant’s delay in making the application, he explained that he only came to realize on 7 April 2006 upon receiving a reply from the police that his father had been treated by one Dr Chow Chi Wing, whose initials, i.e. C W Chow, were the same as those of Dr Chow Chee Wung.  Before he received the notice from the police, the applicant was never aware that the “C W Chow” in the entries from 26 to 28 August 2003 in the medical records was not Dr Chow Chee Wung but someone else.  He did not seek to call Dr Chow Chi Wing at the inquest because he and his family had all along fully trusted Dr Chow Chee Wung.  He believed that calling Dr Chow Chi Wing to give evidence was the only way to completely solve the mystery of why Mr Mo fell into a coma.  Hence his application to overturn the jury’s verdict and have a fresh inquest conducted.

21. According to the transcript of the audio recording of the proceedings at the inquest, Dr Chow Chee Wung had stated clearly in his evidence that apart from himself, another Dr Chow had also taken part in treating Mr Mo.  As that other Dr Chow had taken part in treating Mr Mo on 26 August 2003, the applicant’s allegation that he did not know of the existence of the other Dr Chow until he received the letter from the police is untenable.  Whether the applicant had been misled by the medical records or did not fully understand the contents of the records, the letter from the police to the applicant in April 2006 could not possibly be the first occasion on which the fact that Dr Chow Chi Wing was one of the doctors involved in treating Mr Mo was disclosed.  If the applicant thought that Dr Chow Chi Wing’s evidence was highly relevant, then, upon hearing Dr Chow Chee Wung testifying that another Dr Chow existed, he should have applied to the Coroner to call that Dr Chow to give evidence in court and be cross-examined.  The applicant did not do so, nor did he apply for judicial review within 3 months of the verdict of the inquest.

22. In any event, we do not see how Dr Chow Chi Wing’s conduct could have any effect on the verdict of the inquest.  Section 27 of the Coroners Ordinance (Cap. 504 of the Laws of Hong Kong) clearly provides that the purpose of a death inquest is to inquire into the cause of and the circumstances connected with the death of a person, and the proceedings and evidence at the inquest shall be directed to ascertaining the following matters insofar as they may be ascertained:

(1)     the identity of the person;

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

(3)     the particulars for the time being required by the Births and Deaths Registration Ordinance; and

(4)     the conclusion as to the death.

23. Section 44(1) of the Ordinance further stipulates that neither a coroner nor a jury at an inquest shall frame a finding in such a way as to appear to determine any question of civil liability, or express an opinion on any matter other than a matter referred to in section 27.

24. Mr Mo died about 6 months after he fell into a coma on 28 August 2003.  Needless to say, the jury at the inquest had to consider under what circumstances Mr Mo fell into a coma on 28 August 2003.  What happened on that day was Mr Mo’s cardiopulmonary function stopped, resulting in cerebral hypoxia.  This information constituted evidence that the jury had to consider in determining the cause of death.  To date, however, the applicant has not adduced any evidence to show that Dr Chow Chi Wing’s conduct might have affected the verdict.  The applicant fails to show good reason for extending the time limit of the application in question.

(2)     The applicant’s grounds for judicial review

25. The applicant has put forward the following grounds for applying for judicial review:

(1)     The page numbers of the medical records had been tampered with, page 231 had been replaced and the original page had disappeared, and an entry on that page that “0623 hours the patient pressed the bell” was added afterwards.  In light of these suspicious circumstances, the jury’s verdict of “death by natural causes” was unreasonable.

(2)     The evidence given by the warden and the nurse at the inquest as to why page 231 was copied and replaced was far-fetched and incredible.  The jury should not have accepted such false evidence which resulted in their returning the verdict of “death by natural causes”.

(3)     The cause of Mr Mo’s coma was inseparable from the purpose of the inquest.  The applicant believed that the nurse surnamed Tso was the person referred to Mr Mo’s two letters who had taken away the emergency alarm bell from his bed.  The entry on 26 August 2003 in Mr Mo’s medical records regarding his breathing difficulties was made by the nurse surnamed Tso and Dr Chow Chi Wing.  The applicant contends that they should have been called to give evidence at the inquest, and that the Coroner’s failure to summon them to appear at the inquest constituted negligence and impropriety as it deprived the jury of the opportunity to hear and examine the real cause of Mr Mo’s coma.

26. The nurses who resuscitated Mr Mo on the morning of 28 August 2003 testified at the inquest that when Mr Mo pressed the emergency alarm bell they were alerted and went to his rescue.  The nursing officers who had tampered with the medical records also testified that during an informal conversation which took place some time in September 2003, they recalled that they had failed to record the fact that Mr Mo had pressed the emergency alarm bell, and hence they copied the entries on the relevant pages and added the entry that Mr Mo had pressed the emergency alarm bell.  Furthermore, in order to support the claim that the only amendment made to the relevant records was the part concerning Mr Mo’s pressing of the bell, the hospital submitted a “daily treatment report”, in which the entry on 28 August read: “0625 hours the patient was found to be pale …”.

27. The jury had in our view heard evidence in relation to the first two grounds, and we do not think that a re-hearing of the case and the evidence would increase the possibility of the jury’s verdict being overturned.

28. As regards the third ground, given that Mr Mo stated in his handwritten letter that the emergency alarm bell had been returned to where it was by 7 a.m., we fail to see any connection between the taking away of the emergency alarm bell and Mr Mo’s coma on 28 August 2006.  Furthermore, as pointed out hereinabove, the applicant has failed to adduce any evidence to show that Dr Chow Chi Wing’s conduct might have affected the jury’s verdict.  Nor has the applicant adduced any evidence to prove that the nurse surnamed Tso was the nurse referred to in Mr Mo’s letter who had taken away his emergency alarm bell.  In these circumstances, we cannot discern any basis for a judicial review of the verdict of the Coroner’s Court.  We agree with Chu J’s judgment that the applicant’s grounds for application disclose no arguable case.

29. The applicant submitted that on 30 July 2003 Haven of Hope Hospital asked Mr Mo to leave the hospital and return home for convalescence but Mr Mo’s family objected to the suggestion, and Mr Mo fell into a coma shortly afterwards.  The applicant believed that the medical staff had conspired to fabricate stories with a view to destroying evidence.  He suspected that the medical officers in question had deliberately acted to the detriment of the patient because of his refusal to leave the hospital.

30. The applicant also accused Haven of Hope Hospital of deliberately concealing the facts.  In the medical records supplied to him by Haven of Hope Hospital, many parts had been blacked out.  He received a complete set of records with nothing blacked out only when he attended the inquest at the Coroner’s Court.

31. In our judgment, it was improper for the nursing officers of Haven of Hope Hospital to tamper with the medical records and to firmly deny having done so before they eventually admitted it.  However, although the applicant raises serious allegations against Haven of Hope Hospital and its nursing officers, he has failed to adduce any substantive evidence to prove that the nursing officers in question had been guilty of professional misconduct or had done something which endangered Mr Mo’s life.  Furthermore, a comparison of the two sets of medical records will reveal that the blacked-out parts only relate to the names of the nursing officers.  We can understand the bereavement suffered by the applicant and his family as a result of Mr Mo’s death, and would like to extend our deepest sympathy towards them.  Nevertheless, we hope they can deal with the matter in a rational manner.

Conclusion

32. The appeal is dismissed.