Legal Updates

HKSAR v Mak Wan Ling [2022] HKCA 387
Date of Judgment: 9 March 2022

Background: The third defendant (“D3”), a registered medical practitioner, stood trial together with the first defendant (“D1”) and the second defendant (“D2”). Each of the 3 defendants faced an individual count of manslaughter by gross negligence. The jury convicted D1 and D2 but they were unable to reach a verdict in relation to D3. D3 was retried before the same judge and another jury and was, on that occasion, convicted.

This was D3’s application for leave to appeal against her conviction. 

Facts: 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. Unfortunately, the blood became contaminated during the processing stage. The contaminated blood product was administered by D3, a registered medical practitioner employed to work for the DR Group, to the deceased, causing the death of the deceased.

Appeal: At the hearing, D3 pursued the following 5 grounds of appeal: 

1. The judge did not provide a fair and balanced summing-up in respect of the fifth element of the offence, namely, whether the breach or breaches were so exceptionally bad and reprehensible as to amount to criminal negligence;
2. The judge failed to give the jury a Kevin Brown direction;
3. The judge unfairly allowed the application made by the prosecution to amend the indictment;
4. (this ground was abandoned at the hearing);
5. The judge wrongly directed the jury that there was expert evidence to substantiate the allegation that the administering doctor was under a duty to ensure the matters pleaded under particular (2)(a) of the indictment (“(2)(a) [f]ailing to ensure that a properly qualified person or a properly accredited laboratory was responsible for preparing and producing the said blood product”); and
6. The judge failed to direct the jury that there was no evidence to show that the administering doctor was under a duty to ensure the matters pleaded under particular (2)(a) of the indictment above and particular (2)(b) of the indictment (“(2)(b) [f]ailing to ensure that all necessary bacteria tests had been carried out on the said blood product and that such had been documented prior to administering it to the deceased so as to ensure the said blood product was free of contamination”).

• In relation to Ground 1, the Court of Appeal found that the directions could not be said to be unfair and unbalanced. The position adopted by counsel for D3 was that the judge “was emphasising the bad but not the other side of the ledger, the good”. However, by the time the jury came to consider the fifth element of the offence, which on the judge’s directions the jury would not have reached unless the jury were sure of the other four elements of the offence, the question was not whether D3’s conduct was “good” or “bad”, but “the more relative question of whether it was bad enough to warrant criminal sanction”.
• In relation to Ground 2, when the scheme and structure of the summing-up was read and understood as a whole, it became entirely clear that the risk which the Kevin Brown direction was designed to obviate, could not have materialised in the present case.
• In relation to the amendments to the indictment (Ground 3), the Court of Appeal did not see any significant difference between the case presented against D3 at this trial and the original trial, save that the focus at this trial was on D3 rather than the other two already convicted defendants. In this regard, the Court of Appeal entirely agreed with the judge, who did not find the amendments concerning particular (2)(c) unnecessarily complicating the issues or overloading the indictment and did not accept that the addition of the new particular (2)(d) would be unfair or would cause injustice to D3. The amendments to the indictment are set out in paragraph 4 of the judgment of the Court of Appeal.
• In relation to Ground 5, the Court of Appeal did not think that the averment in Ground 5 derived from a correct interpretation of the evidence, particularly given the testimony of the experts. In any event, whether D3 had a duty to ensure that the person responsible for the CIK product was properly qualified was a matter for the jury. The Court of Appeal held that there was no valid complaint about the judge’s directions on this matter, noting that, having reminded the jury of D3’s position on the issue, the judge specifically invited the jury to consider whether it was the duty of D3 to make sure that the person preparing the CIK product was properly qualified and if the jury did not think she was under such a duty, that was the end of the matter.
• Finally, in relation to Ground 6, counsel for D3 argued that the indictment as framed by particulars (2)(a) and (2)(b) imposed a positive duty to ensure that the CIK product was from a properly accredited laboratory, when no such duty existed in law; a matter which the judge should have made clear. Given what the judge said, the Court of Appeal could not accept that this issue was not well-understood by the jury as a matter for them to determine.