HKSAR v CHOW HEUNG WING, STEPHEN AND CHAN KWUN CHUNG [2021] HKCA 1655
Date of Judgment: 4 November 2021
The deceased, CHAN Yuen Lam, underwent a therapy treatment known as Cytokines Induced Killer cells (“CIK”) treatment launched by the DR Group. The “CIK” treatment involved the extraction, manipulation in a laboratory and reintroduction of blood taken. The deceased’s blood was extracted from her at a clinic of the DR Group and was processed at a laboratory called APSC. Unfortunately, the blood became contaminated during the processing stage and the contaminated blood was infused back into the body of the deceased. As a result, the deceased died from multi-organ failure. (§4–6)
The prosecution alleged that the first defendant (D1), as the person in charge of the DR Group (who happened to be a medical practitioner), the second defendant (D2), “the person in charge of APSC who processed the blood in question” and the third defendant (D3), the doctor who transfused the blood back into the body of the deceased, were liable for manslaughter by gross negligence.
D1, D2 and D3 each faced an individual count of manslaughter by gross negligence, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance (Cap. 212), to which counts they pleaded not guilty. D1 and D2 were convicted by the jury and sentenced to 12 and 10 years’ imprisonment respectively.
D1 and D2 sought leave to appeal to the Court of Appeal (“CA”) against both their convictions and sentences.
D3 does not form part of this appeal.
D1 sought to challenge the conviction on six grounds of appeal (§79–86), which are briefly summarized as follows:
- Ground 1: D1’s counsel alleged that it was erroneous to direct that D1 would owe the deceased a personal duty of care if D1 was found to be in “effective control”, or a “hands-on” boss, of the DR Group. He argued that the judge should have directed the jury to consider whether D1 had assumed responsibility. Further, he submitted that there was insufficient prima facie evidence in order to establish a duty of care and the judge did not define the term “effective control” or sufficiently explain how she arrived at her apparent conclusion that a duty of care could be proved on the evidence.
- Ground 2: D1’s counsel argued that the judge had wrongly directed the jury that the scope of D1’s duty depended on whether he was in effective control of the relevant companies.
- Ground 3: D1’s counsel relied upon a line of English authority, including R v Rudling [2016] EWCA Crim 741, R v Rose (Honey) [2017] 2 Cr App R 28 and R v Sellu [2017] 4 WLR 64, to support the proposition that there must be, objectively and prospectively, “an obvious risk of death: an obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation” .
- Ground 4: D1’s counsel took issue with the direction that, if the jury found D1 had breached the duties under particulars (ii)(b), (c), (d) and (e) of the count, they “should have no difficulties” in finding that the breaches caused the death, or were a substantial cause of the death. D1’s counsel also alleged that the judge unfairly invited the jury to speculate whether the deceased would have declined the therapy, had she been informed of the risks associated with it.
- Ground 5: D1’s counsel submitted that the jury was deprived of any useful guidance as to how they could identify the line separating a very serious mistake or lapse from truly exceptionally bad criminal conduct and argued, relying on R v Sellu [2017] 1 Cr App R 24, that the judge had failed to direct the jury on how they should deal with expert opinion, and to remind them that such evidence should not supplant their own evaluation.
- Ground 6: D1’s counsel argued that the judge’s summing-up was unfair and unbalanced.
D2 pursued four grounds of appeal against his conviction (§87–91), which are briefly summarised as follows:
- Ground 1: D2’s counsel alleged that the judge’s summing-up was unfair and unbalanced.
- Ground 4A: D2’s counsel argued that the judge failed to direct the jury sufficiently on grossness, the fifth ingredient of the offence, and the judge did not properly direct the jury in her summing-up in respect of how expert opinions should be treated by the jury.
- Ground 4B: D2’s counsel argued that it was a material irregularity for the judge to refuse to allow D2’s trial counsel to cross-examine Professor Yuen Kwok Yung, a prosecution witness, effectively on his opinion that it was unfair to have placed such a heavy responsibility on D2.
- Ground 5: D2’s counsel submitted that the judge failed to give a lies direction in respect of D2.
CA held, refusing leave to appeal on D1’s grounds of appeal against conviction and dismissing his appeal against conviction, that (§125–163):
- Grounds 1 and 2: This case was “a classic case of negligence under established principles” and had “nothing to do with notions of assumption of responsibility”. The test employed by the judge was the right test. The expression “effective control” was one which would have been well understood and applied by any jury; supplemented, as it was, by the expression “hands-on boss”.
- Ground 3: CA found no comparison with the circumstances engaged in the English cases, each of which concerned genuine medical procedures or treatment by professionals, where an assessment by the defendant of the patient’s condition might have revealed something life-threatening, if s/he had looked for it. D1 (and D2) were not engaged in the genuine medical treatment of a “patient” who was ill. CIK was an experimental therapy, which had not been proved to be effective. D1 (and D2) had themselves created the serious and obvious risk. The series of English cases in question had no application to the factual matrix in the present case. The judge’s directions were both careful and correct in law.
- Ground 4: The judge’s direction that D1’s counsel took issue with was stating the obvious. Realistically causation was not the issue.
- Ground 5: Firstly, as regards the complaint that the judge failed to confine the “circumstances” which the jury could consider when assessing the grossness of D1’s negligence to the breach itself, CA held that the background was relevant. Secondly, in Sellu, a consultant surgeon was convicted essentially on the basis of expert witnesses who had described his conduct as, among other things, “very bad practice”, which “no reasonable surgeon” could have undertaken, “grossly incompetent”, and even gone so far as to suggest that his performance amounted to “recklessness” and “gross negligence”. It was against such expert evidence that the judge’s directions on gross negligence in Sellu were found wanting. The expert evidence in the present case did not go that far.
- Ground 6: This was not an easy case for the judge to sum up, but the judge achieved it with fairness to all parties.
CA held, refusing leave to appeal on D2’s grounds of appeal against conviction and dismissing his appeal against conviction, that (§164–181):
- Ground 1: CA did not consider the summing-up unfair and unbalanced.
- Ground 4A: CA did not accept that the judge failed to explain to the jury the danger of allowing the opinions of experts to supplant their own evaluation and did not think that the present case was a case where the more emphatic terms of the Sellu directions needed to be given.
- Ground 4B: CA failed to see what conceivable prejudice there was by not permitting counsel to ask a question which he did not pursue or seek to justify. The judge did remind the jury of the evidence which Professor Yuen had given.
- Ground 5: CA found no merit in this ground. D2’s counsel at the trial did not request a lies direction and his case was that the sterility reports were not fake.
As for the appeals against sentence, D1’s counsel submitted, among other things, that the starting point of 12 years’ imprisonment was excessively high whereas D2’s counsel submitted, among other things, that the sentence of 10 years’ imprisonment was manifestly excessive (§92–94).
Allowing D1’s and D2’s appeals against sentence, CA held that:
- In the circumstances, CA considered that the appropriate sentence on D1 should have been one of 10 years’ imprisonment instead. The appalling injuries which were caused to the other two unfortunate customers were not part of the count of which D1 was convicted. The focus of the case had been on the failure to have a safe system to protect the sterility and integrity of the blood product. (§189).
- Noting that the judge assessed D2’s culpability as lower than that of D1 and settled upon a sentence for D2 that was one sixth less than D1’s and the death in tragic circumstances of D2’s former wife, which had clearly blighted the lives of D2 and his 4-year-old child, CA reduced D2’s sentence to 8 years’ imprisonment. (§190–192)
Please refer to the Judgment for details.