HKSAR v. KWAN HAU CHI, VANESSA

CACC 244/2021 [2024] HKCA 1194

On appeal from [2021] HKCFI 2978

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 244 OF 2021

(ON APPEAL FROM HCCC NO 200 OF 2018)

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D E C I S I O N

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1.  On 23 August 2021, following a trial before D’Almada Remedios J and a jury, the applicant was convicted of gross negligence manslaughter and on 4 October 2021 she was sentenced to 6 years’ imprisonment. The applicant is a medical practitioner who conducted liposuction procedure on the deceased, who died immediately after it had been performed. One of the issues at trial and now on appeal is that the forensic pathologist could not identify the cause of death. However, the prosecution raised other matters at trial concerning the nature and staffing of the theatre facility and the lack of proper surgical protocols and procedures.

2.  On 11 May 2023, I granted the applicant leave to appeal against her conviction and sentence.  On the same day, I granted the applicant bail pending appeal on the following conditions: (1)  the applicant shall provide cash bail in the sum of $100,000; (2)  her father shall stand as a surety for her with $200,000 on his own recognizance; (3)  she shall not leave Hong Kong; (4)  she shall surrender all her travel documents, including her HKSAR passport and Entry Permit to China after they had been renewed and for arranging a Power of Attorney; and (5)  she shall reside at the address given.

3.  The applicant now seeks a variation on the travel restriction to allow her to leave Hong Kong and travel to the United Kingdom to arrange the sale of her flat in London and the retrieval or disposal of personal items stored in the flat. 

4.  The applicant is gravely ill, having been diagnosed with cancer in September 2018.  She has previously undergone a series of treatments, including two surgeries in 2018, chemotherapy, and radiotherapy, but since December 2021, her cancer has spread and her treatment and therapy have been both extensive and costly.  The applicant is selling her flat in London and some other personal items to ease her financial burden.  The applicant is receiving treatment at the Prince of Wales Hospital from Dr Thomas Lau, who is of the opinion that the applicant’s disease is non-curative and her overall prognosis is poor.  He explained that the clinical course in treating the applicant is that of progression, which requires multiple cycles of palliative therapies that usually work for a certain period of time and then the disease fails to respond, so further therapies need to be given.  In other words, her cancer is treatable but not curable, and the treatment offered is to help manage the symptoms and slow the progression of the cancer.  There is no doubt that the applicant is seriously unwell and under a lot of stress.  The respondent has very fairly indicated that it does not oppose a reduction to her sentence on humanitarian grounds.

5.  The applicant’s appeal was fixed for hearing on 25 October 2024 but regrettably was vacated and re-fixed for hearing on 23 and 24 July 2025.  The adjournment of the applicant’s appeal was due to no fault of the applicant or her legal team.  The incident underlying the applicant’s conviction took place on 26 June 2014, over 10 years ago, but it was not until 13 March 2018 that she was arrested and charged and put on bail with the condition that she not leave Hong Kong.  She stood trial in August 2021 and was convicted of gross negligence manslaughter.  She was sentenced to 6 years’ imprisonment and has served approximately 1 year and 8 months of her sentence before being granted bail pending appeal on 11 May 2023.  On that occasion, she asked to use her travel documents to arrange a Power of Attorney in order to sell a property in Vietnam.

6.  The applicant also has a property in London which she purchased in 2020.  It appears that she has stored all her personal belongings in the London property that she accumulated since living in the United Kingdom while attending boarding school.  She is in the process of selling her London property and arranging the removal of her personal property, some of which she wishes to sell.  The proceeds of the sale of her real and personal property are to pay for her ongoing medical and legal expenses and to make financial provision for her elderly parents.  Given the nature of the task that she has to attend to in realising her personal assets in London, she feels that this is a task that only she can perform.  In an affirmation filed with the court, the applicant highlights the fact that she has faithfully abided by the bail conditions in the past and adds:

“I do not have any desire to abscond, rather, I need to return to Hong Kong to continue to receive the medical treatments to prolong my life as well as continue to care for my elderly parents. Indeed, returning to Hong Kong to receive medical treatment is the only way to prolong my survival. Should my present line of palliative treatment plan fail, it is only the clinical trial conducted by the Chinese University of Hong Kong that offers me a glimpse of hope to prolong survival.”

7.  The applicant is currently on a treatment and therapy program at the Prince of Wales Hospital where she receives prescribed medication for self administration every two months.  She proposes to travel to the United Kingdom in the next two month period and return for her next medical consultation and prescribed medication.

8.  Ms Sharon Chan, for the applicant, makes three succinct points in support of her submission that there is no risk of the applicant absconding if allowed to travel overseas.  First, the applicant is receiving her current medical treatment plan in Hong Kong and if that fails, the only remaining option is to undergo a clinical trial conducted by the Chinese University.  Secondly, the applicant is not a citizen of the United Kingdom or elsewhere and would not be eligible for public medical services in the United Kingdom.  Thirdly, the applicant needs to care and provide for her elderly parents, who reside in Hong Kong.

9.  When imposing, varying or removing conditions of bail the court is invariably involved in making a risk assessment as to whether the applicant will abide by the conditions to be imposed and honour the undertaking to attend court on the next appointed date.  There are a variety of factors that a court takes into account when deciding whether or not to grant bail, but they mainly involve a consideration of the incentives and disincentives of the applicant abiding by the conditions of bail and his or her likelihood of attending or not attending the next court appointed date.

10.  When addressing an application for variation of bail conditions to allow overseas travel for a convicted person who is on bail pending appeal, important policy considerations need to be taken into account. In Secretary for Justice v Wong Chi Fung [1], Poon JA (as the Chief Judge of the High Court then was)  made the following observations regarding the granting of bail pending appeal to a convicted person:

“7. A person who has been convicted and sentenced to a term of imprisonment does not have a right to be admitted to bail pending appeal against conviction or sentence. Whether or not an appellant should be admitted to bail pending appeal and, if so, on what conditions are at the discretion of the court. Where bail is granted, even when there is no risk of absconding, the court will ordinarily impose conditions requiring the appellant to stay in Hong Kong and as a corollary, not to leave the jurisdiction; to reside at a reported address, which is usually his normal place of residence; to inform the police of any change in that address; and to report to a specified police station on a regular basis. Being subject to those conditions, the appellant does not enjoy the same extent of liberty and movement as others. He must accept such restrictions on his liberty and movement when bail is granted to him.”

11.  Poon JA went on to explain that the restriction to travel addressed the following two fundamental public policy considerations:[2]

“(1)  While his appeal is pending, the appellant remains a person who has been duly convicted and sentenced. That is his status. His conviction and sentence are valid and subsisting unless overturned by the appellate court. That is his legal position. Both his status and legal position do not change upon the appellant being granted bail. In the circumstances, it is in the interest of due administration of justice to require the appellant to stay within the jurisdiction for so long as his appeal is pending. Allowing the appellant unrestricted freedom to leave the jurisdiction as he sees fit and to return if he so desires, when he is no longer an innocent person in the eyes of the law, will clearly undermine the public confidence in the due administration of justice. To the extent that the appellant is not allowed to travel abroad pending appeal, it is a restriction on his liberty and movement. But it is a necessary restriction so as to ensure that, in accordance with the interest of due administration of justice, he is not away from the jurisdiction while his appeal is undergoing the judicial process.

(2)    When it is said that there is no absconding risk, it is necessarily an assessment based on circumstances that were made known to the court the time of the bail.  However, circumstances may change after bail is granted and if the change is material, the risk of absconding may require a different assessment.  Leaving the jurisdiction is self-evidently a material change of circumstances.  The appellant will then be beyond the immediate reach of the Hong Kong judicial system.  The notion of not returning to Hong Kong to face the possible prospect of an unsuccessful appeal may become tempting.  By prohibiting the appellant from leaving Hong Kong, such a possible increase in flight risk is prevented.” 

12.  When deciding whether to lift a travel restriction, Poon JA explained that the onus is upon the applicant, who has been convicted and is pending his or her appeal, to show that there are highly exceptional circumstances justifying his or her travelling overseas.  He emphasised that even accepting that there is a lack of risk of absconding if the applicant is allowed to travel, that alone is not sufficient to displace the public policy considerations.  He noted that there has to be demonstrably strong or special reasons to allow overseas travel in these circumstances.  I observed that this largely depends on the nature and seriousness of the conviction or sentence and the chances of successfully arguing the grounds of appeal.

13.  In applying the statements of principle in Wong Chi Fung, Macrae VP in HKSAR v Tai Yiu Ting [3] also noted the public policy considerations against allowing a convicted person to leave the jurisdiction while his or her case was on appeal:

“10. Although it is not suggested that there is a perceptible risk that the applicant might not return to Hong Kong if permitted to leave, no one can say what the influences might be on anyone, even of the utmost probity and character, when free from the jurisdiction whose courts have convicted him and sentenced him to a term of imprisonment. That risk must inevitably be greater, which is why such applications must give way to more important considerations of public policy, unless the circumstances are highly exceptional. …”

14.  I accept that the applicant’s particular circumstances warrant serious consideration - she has had this case hanging over her head for over 10 years; she has had her appeal delayed through no fault of hers, which has caused her added stress and expense; she needs to sell her London property and arrange the removal or disposal of her personal items that are stored there to fund her medical and legal expenses and provide financial support for her elderly parents; and she is gravely ill and likely to succumb to her illness.  On the other hand, the sale of the London property can be arranged through a real estate agent or a lawyer acting on her behalf; and a transportation company can be commissioned to remove her personal property from the London property and transport it to Hong Kong. 

15.  As much as I sympathise with the applicant’s circumstances, there is a distinct possibility that she may not return to continue with her appeal against conviction and sentence.  It may be due to a whole host of reasons, not necessarily because she has deliberately decided not to return. It is possible that her state of health may prevent her from travelling back to Hong Kong.  The London property is on the market and yet to be sold.  However, I am told that the purpose of the trip is to vacate the applicant’s London property and clear out her personal items that are stored there.  I do not consider this a good enough reason to give way to the more important considerations of public policy that seek to uphold the interests of the due administration of justice by ensuring that a convicted person who has exercised his or her right of appeal attends the appellate court and answers to its decision.

16.  Notwithstanding the able and persuasive submissions of Ms Chan, I am unable to accept that the purpose of the trip to resolve property matters in London is highly exceptional to allow the applicant to leave the jurisdiction.  I have given this matter very anxious thought and sympathise greatly with the applicant’s circumstances.  However, the applicant’s reason for the trip to London does not provide a compelling justification to lift the travel restriction which is a fundamental condition of her bail pending appeal. 

17.  The application for variation of the applicant’s bail terms is therefore refused.