Court of Appeal delivers landmark ruling on holding a death inquest for Lamma IV Tragedy
Public Law
Background Summary
On the night of the National Day in 2012, two passenger vessels, the Sea Smooth and the Lamma IV, collided off the north-west coasts of Lamma Island, which led to the worst and deadliest maritime disaster in Hong Kong since 1971 causing 39 casualties.
Resource: hk01
Application before the Court of First Instance
The applicants, who are the family members of four victims and supported by the families of seventeen other victims made an application under section 20(1)(a) of the Coroners Ordinance (Cap. 504) for an order that an inquest be held with regards to the Lamma Island ferry collision disaster (“the Application”).
On 24 November 2022, Coleman J of the Court of First Instance refused the Application on the basis that an independent investigation and criminal trial were sufficient for the presiding judge to rule the deaths as “unlawful killing”. Although the Court acknowledged the family’s desire to uncover every detail surrounding their loved one’s death but by considering public interest elements, it was deemed unnecessary to reveal all the details through a death inquest.
The Court of Appeal’s Ruling
Mr. Jeffrey Tam (together with Mr. Colman Li), on behalf of the appellants argued that the judge in the Court of First Instance made several key errors, including:
(1) Misjudging the extent of established facts surrounding the victims’ deaths and whether legal proceedings and a Commission of Inquiry (COI) were sufficient to conclude an unlawful killing;
(2) Failing to adequately weigh the public interest factors in favor of holding an inquest; and
(3) Wrongly concluding that it was not in the public interest to hold an inquest to consider recommendations aimed at preventing similar fatalities in the future.
It is further contended that there were significant issues of public interest and systemic implications that remained unresolved, including:
(1) Whether the shipbuilder was aware from the outset that a particular bulkhead was to be watertight.
(2) Whether blame for errors in stability calculations was wrongly shifted.
(3) Whether certain modifications were made to the vessel involved in the collision.
(4) Whether certain safety standards were not met by the ferry company.
(5) Conflicting information regarding the frequency of inspections of watertight appliances.
(6) The issue of seafarers’ long working hours.
The Court of Appeal examined the statutory framework of the Coroners Ordinance and evaluated the coronial jurisdiction in Hong Kong. The Court of Appeal affirmed that the coroner performs both an investigative function with respect to a particular death and a social and preventive function to prevent future deaths (paragraph 87). It was held that the latter is becoming increasingly significant as a death inquest could expose systemic failings, alleviates public concern and suspicions surrounding deaths that would have otherwise continued to disturb the community (paragraph 89).
The CA laid down eight factors for consideration in deciding whether to exercise discretion it is to hold a death inquest in the public interest (paragraphs 91 to 99):-
1. First, any benefit that may accrue from the public nature of the proceedings and whether the conduct of the inquest itself, will assist the investigation and facilitate the coroner or jury in making the necessary findings and recommendations;
2. Second, 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. Third, whether the circumstances of the death involve any systemic issue that would give rise to legitimate public expectation;
4. Fourth, whether it is necessary or desirable for the public to be fully informed of the circumstances of the death through an inquest.
5. Fifth, whether an inquest would assist a properly interested person, in particular the family of the deceased, to have a better understanding of what occurred to the deceased;
6. Sixth, 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. Seventh, the likelihood that the jury may make useful recommendations if an inquest is held;
8. Eighth, public resources implications for holding an inquest.
The Court of Appeal agreed that the issues raised by the Appellants were of public interest and warranted further investigation. The court also noted that a public inquest could enhance public confidence and accountability in the governance of maritime safety, therefore allowed the appeal and ordered a fresh inquest to be held to investigate the deaths of the two victims of the Lamma IV disaster.
|
Jeffrey Tam
“Jeffrey Tam of Denis Chang’s Chambers stands out in the opinion of several interviewees … he also operates a broad commercial practice, embracing, among other matters, shareholder and securities-related issues.” — Chambers & Partners Greater China Region 2022, Commercial Dispute Resolution: The Bar (Spotlight Table) Jeffrey Tam, FHKIArb, attended St. Anne’s College at the University of Oxford for a Bachelor of Civil Law (BCL) on a scholarship after reading law at the City University of Hong Kong. He is also named as a “Leading Junior” for Administrative and Public Law in Legal 500 Asia-Pacific 2022. Visit Jeffrey’s profile for more details. This article was first published on 26 July 2023.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers.
Image credit: https://www.hk01.com/社會新聞/923325/南丫海難-高院頒令召開死因研訊-運輸及物流局-會盡力配合?utm_source=01webshare&utm_medium=referral&utm_campaign=non_native |
