HKSAR v. LI WANG PONG, FRANKLIN

HCCC 137/2022

[2025] HKCFI 5486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 137 OF 2022

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REASONS FOR SENTENCE

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INTRODUCTION

1.  The defendant, LI Wang-pong, Franklin, a registered doctor, was charged with one count of Manslaughter by gross negligence, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance, Cap.212, concerning the death of his patient, Ms. Cheung Shuk-ling, Zoe, on 12 November 2018.

2.  The defendant pleaded not guilty to the charge at the Magistrates’ Court and after the Preliminary Inquiry in 2022, the Magistrate committed the case to the Court of First Instance for trial.  Shortly before his trial in October 2024, the issue of his fitness to stand trial was raised by the defence.  The original trial dates had to be vacated and re-fixed to 11 September 2025.  According to the special procedures laid down by sections 75 and 75A of the Criminal Procedure Ordinance, Cap.221, a jury was empaneled to firstly determine on the issue as to whether the defendant is fit to stand trial.

3.  Relying on psychiatric evidence of two experts to which the prosecution did not challenge, the defence established that the defendant, now 93, suffers from Dementia and Neurocognitive Disorder due to Alzheimer's disease.  Unsurprisingly, the jury unanimously found him unfit to stand trial.

4.  The same jury then proceeded, under section 75A of the Criminal Procedure Ordinance (Cap.221), to determine whether the defendant committed the act charged.  After a hearing which lasts for 20 days, the jury unanimously found that he did commit the act of manslaughter by gross negligence.

FACTS OF THE CASE

5.  The facts revealed the defendant administered a combination of sedative drugs (propofol, lignocaine, midazolam and pethidine) when he administered botox to Ms. Cheung in his Tsim Sha Tsui clinic in the afternoon on 11 November 2018.  An expert in plastic surgery testified that this was not common practice for botox treatment.

6.  The cause of death, according to the pathologist, was Bronchopneumonia due to Hypoxic Brain Damage, resulting from the adverse effects of the combination of sedative drugs.

7.  Evidence before this Court showed that the defendant was aware that Ms. Cheung had taken 5 mg Stilnox beforehand.  Combining this with the sedatives used increased the risk of respiratory depression and death.

8.  Evidence before this Court also revealed multiple failures before or during the sedation procedure: the defendant did not check Ms. Cheung’s fasting status, failed to monitor her oxygen saturation with a pulse oximeter, failed to provide oxygen, and failed to have antagonists available.

9.  Crucially, after the collapse of the patient, the defendant concealed the treatment and drug information from police and even doctors from the A&E Department of the QEH, thereby obstructing potential life-saving care.

10.  Based on the “Guidelines on Procedural Sedations (2009)” published by the Hong Kong Academy of Medicine, prosecution’s expert anesthesiologist testified that these failures were “exceptionally below standard” and created a serious and obvious risk of death.

11.  The jury’s unanimous finding means they were all sure the defendant’s breach of duty was so severe that it amounted to gross negligence, causing the death of Ms. Cheung. They must have also been satisfied that the circumstances of the breach justify the conclusion that it amounted to gross negligence.  Putting it another way, they must have been sure that, in all the circumstances, the defendant’s conduct, the defendant’s breach of his duty causing the death of the deceased, fell so far short of what could reasonably be expected of him that justifies the conclusion that he has committed the act of manslaughter by gross negligence.  

PERSONAL BACKGROUND OF THE DEFENDANT

12.  The defendant is of advanced age of 93 now with a clear criminal record.  He was already 86 at the time of this offence but he was still engaged in active medical practice as evidenced by the records of this patients seized in his clinic.  He was a well known plastic surgeon in the city but it should be noted however that he had a relevant and similar disciplinary record just 9 years before this offence when he was 77.  In 2009, the Medical Council found him guilty of professional misconduct in a similar case in 2003 involving a female patient’s death during liposuction and suspended him for 5 months.

CONSIDERATION OF THE SENTENCE

13.  Sentencing options for a defendant found unfit to stand trial but to have committed the act are governed by section 76 of Cap.221.  Put simply, the court may order: (a) admission to a psychiatric centre; (b) a guardianship order or supervision and treatment order; or (c) absolute discharge.

14.  Psychiatric evidence in this case confirmed the defendant’s condition is due to his old age, is untreatable, and irreversible.  Following discussions with Prosecution and Defence, a hospital order or a supervision and treatment order is considered to be impracticable and not suitable in his case.  The case is therefore adjourned until 12 November 2025 for the purpose of obtaining a Social Welfare Report regarding the suitability of a guardianship order for the defendant.  

15.  For the purpose of compiling the report, the probation officer paid a visit to the defendant’s home to interview the defendant and his wife and children who are his primary caregivers and assessed the necessity of a guardianship order.  The probation officer found the defendant is stably cared for at home by his wife and son (a doctor), with assistance from domestic helpers.

16.  The family is financially stable, shares consistent caregiving views, and requires no external intervention.  The report concluded a guardianship order was unnecessary, as family care is a less restrictive alternative.

17.  In light of the assessment, I am satisfied that a guardianship order is not necessary.

ORDER

18.  Based on the above reasons, the only remaining option available under Section 76 of Cap.221 is one of absolute discharge and I so order.  The court has no lawful authority to impose any further order.  The case against the defendant is effectively concluded, and he will be discharged from the proceedings.

POSTSCRIPT

19.  While the legal proceedings have concluded without a formal conviction due to the defendant’s profound unfitness to stand trial, this outcome should not be mistaken for absolution.  The jury’s finding stands as a definitive court record of his grossly negligent acts which caused a needless death.

20.  The defendant’s failures, including in particular the concealment or non-disclosure of drug and treatment information, were egregious and betrayed the trust of his patient, who was also a friend as evidenced by their WhatsApp communications produced in the hearing.  His prior disciplinary record for similar professional misconduct reveals a deeply troubling pattern.  The defendant should already consider himself very lucky in that he was not charged in a criminal court because of that fatal medical incident in 2003 when he was at the relatively younger age of 71.  In any event, the subsequent convictions together with the sentences passed by the Council in 2009 should have served as a wake-up call or severe warning to him despite the punishments passed by the Council were by no mean serious.  Be that as it may, he seemingly still have not learned from his mistakes by either giving up his medical practice at once or make the necessary improvements in his practice in the years that followed.  Instead, he just went on to commit the same mistakes during the sedation procedure in this case and took away the life of yet another patient.

21.  For these acts, which directly contributed to the needless loss of a life, the defendant deserves the strongest condemnation.  The facts established in court justify a finding of gross negligence manslaughter, and the serious professional failure and flagrant incompetence by this defendant has already been fully and rightly reflected in the unanimous verdict reached by the jury.

22.  While I agree fully with the defence submission that to impose a punitive measure upon a defendant who is not fit to answer for it is unjust, justice must also be done to the deceased’s family to redress their grief and sorrow.  Even without a criminal conviction and hence punishment, a full and unequivocal apology to the grieving family of the deceased is what decency demands in light of the justice to the deceased’s family.  The court expresses profound sorrow that due to the defendant’s current mental state, even this minimal act of contrition is now beyond his capacity, leaving the family without accountability or closure.  The family may now only seek redress in the civil proceedings.