{"id":12465,"date":"2021-03-15T15:05:24","date_gmt":"2021-03-15T07:05:24","guid":{"rendered":"https:\/\/cmel.hku.hk\/legal_update\/court-of-final-appeals-judgment-on-elements-of-gross-negligence-manslaughter-hksar-v-mak-wan-ling-2019-hkcfa-37-and-cmels-webinar\/"},"modified":"2025-07-19T11:17:21","modified_gmt":"2025-07-19T03:17:21","slug":"court-of-final-appeals-judgment-on-elements-of-gross-negligence-manslaughter-hksar-v-mak-wan-ling-2019-hkcfa-37-and-cmels-webinar","status":"publish","type":"legal_update","link":"https:\/\/cmel.hku.hk\/zh\/legal_update\/court-of-final-appeals-judgment-on-elements-of-gross-negligence-manslaughter-hksar-v-mak-wan-ling-2019-hkcfa-37-and-cmels-webinar\/","title":{"rendered":"Court of Final Appeal\u2019s judgment on elements of Gross Negligence Manslaughter (HKSAR v MAK WAN LING [2019] HKCFA 37) and CMEL\u2019s webinar"},"content":{"rendered":"

On 1st December 2020, Dr MAK Wan Ling, a registered medical practitioner, was found guilty of Manslaughter by Gross Negligence (\u201cGNM\u201d) in a retrial by the High Court in Hong Kong. She was sentenced to 3\u00bd years\u2019 imprisonment. Dr Mak administered a heavily contaminated processed blood product to a patient, causing the patient\u2019s death.\u00a0 She failed to ensure that bacteria tests had been conducted on the blood product and to obtain proper consent from the deceased.<\/p>\n

To follow up, the Centre for Medical Ethics and Law of the University of Hong Kong (our centre) will hold a webinar to explore some of the issues raised.<\/p>\n

Dr Mak\u2019s appeal
\n<\/strong>
\nPrior to the retrial in which she was convicted, Dr Mak had appealed to the Hong Kong Court of Final Appeal (\u201cHKCFA\u201d) from a judgment on a preliminary issue:\u00a0HKSAR v Mak Wan Ling\u00a0<\/em>[2019] HKCFA 37.<\/p>\n

In the HKCFA, Dr Mak argued that, in addition to the objective reasonable man test, the prosecution is required to show that the defendant was subjectively aware of an obvious and serious risk of death to the deceased in order to prove the element of \u201cgross negligence\u201d in the offence of GNM (\u201cProposition\u201d).<\/p>\n

\u201cObjective test\u201d adopted in England and Wales
\n<\/strong>
\nIn the leading English case of\u00a0R v Adomako<\/em>\u00a0[1995] 1 AC 171, the House of Lords held that whether the defendant\u2019s breach of duty should be characterised as \u201cgross negligence\u201d is a question for the jury who \u201chave to consider whether the extent to which the defendant’s conduct departed from the proper standard of care \u2026 involving \u2026 a risk of death to the patient, was such that it should be judged criminal\u201d.<\/p>\n

The HKCFA noted that\u00a0Adomako<\/em>\u00a0applies an \u201cobjective test\u201d for \u201cgross negligence\u201d by reference to a standard of care.<\/p>\n

Dr Mak\u2019s arguments in favour of including a \u201csubjective test\u201d
\n<\/strong>
\nIn support of her proposition to adopt a \u201csubjective test\u201d in determining whether the conduct involved \u201cgross negligence\u201d (the Proposition), Dr Mak put forward two arguments.<\/p>\n

Firstly, Dr Mak contended that the definition of the offence of GNM is objectionably \u201ccircular\u201d in the sense that the\u00a0Adomako<\/em>\u00a0line of authority failed to offer a jury sufficient guidance as to what constituted \u201cgross negligence\u201d, leaving the jury to decide whether the negligence in a particular case warranted determination as a crime.<\/p>\n

Secondly, Dr Mak argued that it is unacceptable in principle and contrary to authority for the liability for an offence as serious as manslaughter to rest on an objective test, instead of proof of the defendant\u2019s awareness of the risk of causing death.<\/p>\n

HKCFA\u2019s decision<\/strong><\/p>\n

The HKCFA rejected Dr Mak\u2019s arguments and concluded that \u201c[i]n the offence of manslaughter by \u201cgross negligence\u201d, the element of \u201cgross negligence\u201d \u2026 is proved by application of the objective standard of reasonableness, there being no additional requirement that the prosecution must also prove that the defendant was subjectively aware of an obvious and serious risk of death to the deceased. Such awareness, if proved, is relevant to liability but not a necessary ingredient of the offence.\u201d (paragraph 56 of the judgment)<\/p>\n

Application of the law of GNM to the medical profession
\n<\/strong>
\nIn addition to the test for \u201cgross negligence\u201d, the application of the law of GNM to the medical profession has also been the subject of debate. On the one hand, it has been suggested that applying GNM to the medical profession could encourage the practice of defensive medicine, affect compassionate care, cause alienation of the medical profession and hinder the development of a safety culture.1<\/sup>\u00a0\u00a0On the other hand,\u00a0 it has been contended that doctors should be accountable.2<\/sup><\/p>\n

Register for our webinar
\n<\/strong>
\nThese and other issues will be considered by a panel of lawyers and doctors in our webinar entitled \u201cGross Negligence Manslaughter: Should it apply to healthcare practitioners?<\/strong>\u201d<\/a> scheduled for Friday, 9 April 2021 (4:00 pm \u2013 6:00 pm (HK Time)). The webinar will include the following presentations.<\/p>\n