Legal Updates

HKSAR v Chow Heung Wing, Stephen  [2022] HKCA 313
Date of Decision: 23 February 2022

The Court of Appeal handed down a judgment in respect of the appeals of the first defendant (“D1”) and the second defendant (“D2”) against conviction and sentence for manslaughter by gross negligence. In doing so, the Court of Appeal refused the applications by D1 and D2 for leave to appeal against their conviction and dismissed their appeals against conviction but granted leave to appeal against sentence and allowed their appeals against sentence.

This was an application by D1 only to certify five points of law of great and general importance, which were said to be involved in the Court of Appeal decision above, pursuant to section 32(2) of the Court of Final Appeal Ordinance (Cap 484).

Section 32(2) provided that “[l]eave to appeal shall not be granted unless it is certified by the Court of Appeal … that a point of law of great and general importance is involved in the decision or  …”

1. “In cases of Gross Negligence Manslaughter (in which a convicted defendant could face life imprisonment) is it necessary to establish that an individual defendant assumed personal responsibility for the actions by third parties employed by a company controlled by him that were the substantial cause of death or is the relevant breach of duty to be assessed only by reference to whether the individual was in effective control, or a “hands-on” boss of the company?”
2. “In cases in which a co-defendant cross-examines another defendant by putting a bare assertion which completely undermines the latter’s defence, which is denied and in respect of which the co-defendant chooses not to testify and there is no other evidence capable of supporting such assertion – au contraire the evidence overwhelmingly suggests otherwise:
   a. Should the Trial Judge permit the prosecution to pursue the same assertion in cross-examination and later in closing as part of the prosecution case?
   b. Should the Trial Judge direct the jury in terms to ignore that assertion in the case of the Defendant against whom it was made?”
3. “In Gross Negligence Manslaughter, where a breach of a personal duty of care is established, must the jury be directed to discount what the defendant should have known but for his breach of duty, in assessing whether the defendant objectively foresaw serious and obvious risk of death?”
4. “In relation to the element of “truly exceptionally bad” conduct is such conduct limited to the circumstances of the proven breach or can other unrelated misconduct also be taken into account?”
5. “Where a defendant is unaware of a serious and obvious risk of death, [in this case because D1 honestly believed that proper screening and bacterial testing was being performed] is his subjective belief relevant to any of the ingredients of Gross Negligence Manslaughter?  How should a trial judge direct the jury?”

1. The 1st point of law concerning whether it was necessary to establish that an individual defendant “assumed personal responsibility” for the actions by third parties employed by a company controlled by him simply did not arise on the facts. The Court of Appeal noted that, once proximity was established by reference to the test as to whether the plaintiff belonged to a class which either was or ought to be within the contemplation of the defendant and whether the defendant by reason of his involvement in an activity was given a measure of control over and responsibility for a situation which, if dangerous, would be liable to injure the plaintiff, none of the more sophisticated criteria which had to be used in relation to allegations of liability for mere economic loss would have to be applied in relation to personal injury. Given “the overwhelming nature of the evidence against D1 as a “hands-on boss” in respect of every detail of the CIK treatment”, the 1st point of law was not of any application;
2. In respect of the 2nd point of law, the Court of Appeal noted that there were five allegations of breach of duty. The failure to conduct sterility tests was not the limit of the prosecution case and, even if it were so, the Court of Appeal had already set out their damning conclusions on the evidence as to the grossness of the negligence involved;
3. There was the same misconception in relation to the 3rd point of law, as the prosecution case was not all about what D1 should have known in respect of sterility tests.  The charge and the case was far wider: it was about “the failure of D1 as the person intimately involved with the marketing, preparation and administration of CIK treatment to the deceased to have in place a safe system when dealing with an obviously dangerous product”;
4. In respect of the 4th point of law, the incidents of failure to take reasonable care for the safety of the deceased were “quite appalling”, irrespective of the matters about which counsel for D1 complained and which were said to be unrelated.  Those matters paled into insignificance against the other matters on which the element of grossness was reliant; and
5. The 5th point of law simply did not arise. The 5th point of law was a matter of fact dressed up as a point of law, which invited the Court of Final Appeal to address a hypothetical question based on facts which had been assumed in D1’s favour, but which the Court of Appeal did not accept. Nor did the jury accept those facts which had been assumed in D1’s favour, since the judge had given an extremely favourable direction to the jury on the question of subjective knowledge which was incorrect.