Legal Updates

Leave to appeal granted in liposuction gross negligence manslaughter case: HKSAR v KWAN HAU CHI, VANESSA [2023] HKCA 662

Before: Hon Zervos JA in Court
Date of Reasons for Judgment: 23 June 2023

The applicant was charged with manslaughter, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance (Cap. 212).

In 2014, Ms Lee Kar-ying Josephine (“V”) died following a liposuction procedure performed by the applicant, a registered medical practitioner.

The prosecution’s case was that the applicant breached her duty of care to V and that her breach of duty caused V’s death and constituted gross negligence.

The prosecution particularised five alleged breaches of duty of care by the applicant. Briefly, the alleged breaches were (a) failure to have present a properly qualified person to administer and monitor sedation; (b) failure to ensure sufficient supply of oxygen during sedation; (c) failure to act in accordance with various guidelines of the Guidelines on Procedural Sedation; (d) failure to provide proper and sufficient monitoring after the procedure of liposuction; and (e) failure to provide adequate, timely resuscitation to V.

In 2021, the applicant was convicted after trial of gross negligence manslaughter and was sentenced by the trial judge to 6 years’ imprisonment. A briefing on the trial judge’s Reasons for Sentence is available here.

The applicant applied for leave to appeal against conviction and sentence. Her application was heard by Zervos JA, a judge of the Court of Appeal.

Leave to appeal against conviction

Zervos JA noted that the nature of the deceased’s death was unable to be ascertained and held that it was arguable that Dr Chan Yu Wai and Dr Phoebe-Anne Mainland, prosecution experts, within the confines of their expert knowledge, proposed a cause of death of which they were uncertain.

The applicant advanced the following ten grounds of appeal against conviction:

  • “Ground 1: The judge erred in allowing the production of the combined CCTV footages in circumstances that constituted material irregularity at trial.”
  • “Ground 2: The judge failed to adequately and sufficiently direct the jury on (i) the limitations of the CCTV footages; and (ii) the proper approach to the evidence where a large part of the prosecution’s case on the applicant’s alleged actions/inactions was derived from interpretations made and inferences drawn by the key expert witness Dr Mainland from the incomplete CCTV footages.”
  • “Ground 3: There was a material irregularity occasioned by the drastic and last­ minute departure in Dr Mainland’s evidence from the assumptions she made in her expert report (Exhibit P100) which, coupled with the lack of timely and full disclosure to the defence of material information pertaining to such departure despite the defence’s request, resulted in unfairness and prejudice to the defence at trial.”
  • “Ground 4: There was a material irregularity in the conduct of the trial when the judge refused to allow defence counsel to cross-examine on (i) the contents of Dr Lester Ah Critchley’s expert report notwithstanding that the report had been considered by the prosecution expert witnesses themselves when forming their opinions; and (ii) the original unmuted CCTV footages adduced at trial as Exhibit P55. The applicant was thus deprived of the opportunity to present her defence case fully, especially on the crucial issue as to the deceased’s level of sedation, thereby undermining her right to fair trial.”
  • “Ground 5: The judge failed to adequately sum up and direct the jury in a fair and balanced manner.”
  • ‘Ground 6: The judge failed to adequately direct the jury on the issue of “causation” in the circumstances of this case where the prosecution case was expressly based on Dr Mainland’s opinion that it was “the additive effect, or combination of several failures that together contributed to the situation where death occurred”.’
  • “Ground 7: The judge’s direction on the issue of “foreseeability”, given after her direction on “causation”, was liable to confuse the jury, which prejudice was compounded by the erroneous direction to the jury that they were entitled to consider multiple breaches of duty of care together in approaching the issue of foreseeability”.
  • “Ground 8: The judge erred in instructing the jury to find the prosecution case proved if they find they could rely on Dr Mainland’s opinion, giving rise to the risk of the expert’s opinion supplanting the jury’s evaluation of the evidence”.
  • “Ground 9: The judge failed to give a Kevin Brown direction and failed to sufficiently instruct the jury as to how they should approach their tasks on route to verdict where there were multiple particulars of breach of duty of care alleged, each capable of amounting to gross negligence. In the context of the present case, such a direction (requested, but not entertained) would be required, contrary to HKSAR v Mak Wan Ling [2022] HKCA 397.”
  • “Ground 10: In all the circumstances, the conviction is unsafe and unsatisfactory.”

Zervos JA did not find Grounds 1, 2 or 3 reasonably arguable “in so far as they complained about the combining of Camera 4 and Camera 8 and the admission into evidence of the Combined CCTV and its late disclosure”. Zervos JA added that various reasonably arguable points were made in these grounds relating to Dr Mainland’s evidence but these points appropriately come within the terms of the general complaint about the evidence of Dr Mainland as described in Ground 8.

Zervos JA held that Ground 4 and Grounds 6-10 were reasonably arguable and granted the applicant leave to appeal against conviction on Ground 4 and Grounds 6-10.

As for Ground 5, Zervos JA did not find Ground 5 reasonably arguable “to the extent that the judge’s summing-up was unfair and unbalanced”. Nonetheless, Zervos JA held that there were “obvious and inherent issues with the expert evidence … which arguably should have been emphasised in the judge’s summing-up”. Zervos JA found it reasonably arguable that “critical aspects of the expert evidence were not appropriately or sufficiently emphasised with the jury”. To that extent, he granted the applicant leave to appeal on this ground.

Leave to appeal against sentence

The applicant advanced the following two grounds of appeal against sentence:

  • “Ground 11: The judge erred in considering the particulars of breach of duty of care which formed an inherent part of the offence itself as aggravating factors in sentencing.”
  • “Ground 12: The sentence of 6 years’ imprisonment was manifestly excessive and failed to take sufficient account of the mitigating circumstances of the applicant.”

Zervos JA found the grounds of appeal against sentence reasonably arguable, and granted the applicant leave to appeal against sentence.


Zervos JA granted the applicant leave to appeal against conviction and sentence on the grounds specified above.

Please refer to the Reasons for Judgment handed down by Zervos JA for more details.

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