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The Court of Appeal ordered that an inquest be held into the death of the victims to the collision of vessels near Lamma Island on 1 October 2012

In Leung Shuk Ling & ors v Coroner [2023] HKCA 904 – the first appeal ever brought against an order made under section 20(1) of the Coroners Ordinance (‘the Ordinance’) – the Court of Appeal overturned the lower court’s decisions that an inquest into the death of the victims of Lamma IV tragedy needs not be held.

Messrs Ho Tse Wai & Partners acted for the successful 1st and 2nd Applicants.

Background

On 1 October 2012, two vessels, namely the Lamma IV and the Sea Smooth, collided in Hong Kong waters off the northwest coast of Lamma Island. The accident resulted in the tragic loss of 39 lives, with over 90 people suffered serious injuries.

On 22 October 2012, the Chief Executive-in-Council appointed a Commission of Inquiry (‘the COI’) to inquire into the facts and circumstances leading to and surrounding the collision of the two vessels.

On 19 April 2013, the COI submitted its report to the Chief Executive (‘the COI Report’).

After the publication of the COI Report, the Hong Kong police continued their investigation of the matter and gathered evidence that either only emerged after the COI Report or had not been considered by the COI.

In 2020, the Coroner, after taking into account of, amongst other things, the COI Report, considered that the functions of the COI and the purpose of a death inquest had completely overlapped; that the recommendations made by the COI, with which he agreed, had already covered all the situations which could prevent the occurrence of similar incidents; and that the additional evidence collected after the COI Report did not assist or change the investigation of the cause of, the circumstances connected with, and the prevention of the deaths.  Accordingly, the Coroner decided not to hold an inquest into the death of the victims.

Aggrieved by his decision, the family of four victims, with the support of the families of seventeen other victims, applied to the Court of First Instance under section 20(1)(a) of the Ordinance for an order that a death inquest be held. The application was refused by the Court of First Instance, because it was not satisfied that public interest requires a death inquest be held.

The family of the victims appealed against the judgment of the Court of First Instance.

The Appeal

The critical issue is whether it is in the public interest to hold an inquest into the deaths of the victims of the Lamma IV by reason of the matters relied on by the applicants which either only emerged after the COI Report or had not been considered by the COI.

As it was the first appeal ever brought against an order made under section 20(1) of the Ordinance, the Court of Appeal took the opportunity to delineate the general principles on how to decide whether it is in the public interest to hold an inquest into deaths including those caused by accident.

By examining the content of ‘the public interest’ in light of the role and functions of a coroner in conducting a death inquest under the Ordinance, the Court concluded that the coroner performs both an investigative function with respect to a particular death and a social and preventive function which focuses on the public interest (para. 87). These two broad functions are enhanced by the public nature of an inquest (para. 90).

Having examined the content of the public interest, the Court listed out 8 factors that are usually relevant to the exercise of judicial discretion in deciding whether to hold a death inquest in the public interest, as follows (paras. 92 to 99):-

  1. The public and investigative nature of an inquest hearing, at which the coroner is endowed with wide and coercive evidence-gathering powers;
  2. Whether the identity of the deceased, and how, when and where the deceased came by his death are known or have been ascertained already;
  3. Whether the circumstances of the death involve systemic deficiency which presents itself as an ongoing and general problem, which deficiency will give rise to a legitimate public expectation that such systemic issue be identified and address at a public inquest;
  4. Whether it is necessary or desirable for the public to be fully informed of the circumstances of the death through an inquest;
  5. Whether an inquest would assist the family of the victims to have a better understanding of what occurred to the victims;
  6. Whether it would be expected to yield further information relevant to the circumstances connected with the death which has thus far not come to light and merits to be examined at a public inquest;
  7. The likelihood that useful recommendation would be made if an inquest is held; and
  8. The resource implications for holding an inquest.

Applying the general principles and consideration identified in the judgment, the Court held that the lower court judge’s view on what the public interest entails in the context of the coroner’s decision to hold an inquest and its application to the facts is too restrictive, and hence  sufficient considerations had not been given to the matters relied on and the discretion was as a result erroneously exercised (para. 112). The court identified, amongst other things, the following areas which warrant an inquest be held (para. 101):-

  1. Whether from the outset the builder of the Lamma IV knew that the bulkhead between the Tank Room and the Steering Gear Compartment of the Lamma IV was to be built watertight;
  2. Whether those who was responsible for making the Damage Stability Calculations for the Lamma IV shifted the blame for the mistakes;
  3. Whether a L-shaped metal plating on the port hull was attached to the Sea Smooth at the time of the collision;
  4. Whether the coaming of the Lamma IV was lower than required;
  5. Whether the bulkhead between the Tank Room and the Steering Gear Compartment of the Lamma IV was inspected annually or bi-annually;
  6. The long working hours of seafarers in the passenger ferry industry; and
  7. The systemic questions raised by items (1) to (6) above, in regard to amongst other things the systemic deficiency in the Marine Department concerning approval, certification and survey for passenger vessels not yet discovered by the COI.

The Court observed that given public nature and hence transparency of a death inquest, it may help enhance the accountability of and public confidence in the governance of the Marine Department. This provides another cogent reason why the responsible Marine Department officers have to be publicly examined at an inquest (para. 106).

Significance

The Court of Appeal’s judgment is, in this jurisdiction, the first authoritative judicial pronouncement on the general principles on how to decide whether it is in the public interest to hold an inquest into deaths including those caused by accident.

For more information, please contact the handling solicitors, Mr Jonathan Man and Mr YAU Kwok Hei.

 

Link to the Court of Appeal’s judgment.

Media coverage of the subject appeal:-

https://news.mingpao.com/pns/%E8%A6%81%E8%81%9E/article/20230727/s00001/16903949490
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https://news.now.com/home/local/player?newsId=526114

https://hk.on.cc/hk/bkn/cnt/news/20230727/bkn-20230727033015482-0727_00822_001.html

https://www.hk01.com/%E7%A4%BE%E6%9C%83%E6%96%B0%E8%81%9E/923525/%E5%8D%97%
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https://www.scmp.com/news/hong-kong/law-and-crime/article/3228953/hong-kong-court-orders-coroners-inquest-2012-lamma-ferry-crash-killed-39-people-overturning-earlier

https://www.thestandard.com.hk/breaking-news/section/4/206393/Court-of-Appeal-orders-inquest-into-the-deaths-of-two-victims-in-the-Lamma-Island-boat-crash