HKSAR v. MAK WAN LING

FAMC No. 66 of 2018

[2019] HKCFA 11

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 66 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CAQL NO. 1 OF 2018)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.  After hearing the parties, we were satisfied that leave to appeal should be granted in respect of the following question of law, namely:

“In the offence of manslaughter by gross negligence, should the gross negligence referred to in the last element of the offence as enunciated in R v Adomako [1995] 1 AC 171, namely ‘the breach of the duty by the defendant being capable of being characterised as gross negligence and therefore a crime’ be proved based on the objective reasonable man test only or that in addition to the objective reasonable man test, the prosecution is also required to prove that the defendant’s subjective state of mind was culpable in that the defendant was subjectively aware of the obvious and serious risk of death to the deceased?”

2.  Since, however, the application involved a question of jurisdiction, we indicated that we would hand down our reasons in due course, which we now do.

The jurisdiction issue

3.  The jurisdiction issue in the present application arises because the judgment of the Court of Appeal leading to the present application[1] was a judgment on a reference to it on a point of law pursuant to section 81 of the Criminal Procedure Ordinance.[2]  Section 81 gives a trial judge in a criminal matter a power to reserve a question of law for the Court of Appeal.

4.  The criminal jurisdiction of the Court of Final Appeal is set out in section 31 of the Hong Kong Court of Final Appeal Ordinance, [3] which provides:

“An appeal shall, at the discretion of the Court, lie to the Court in any criminal cause or matter, at the instance of any party to the proceedings, from –

(a) any final decision of the Court of Appeal;

(b) any final decision of the Court of First Instance (not being a verdict or finding of a jury) from which no appeal lies to the Court of Appeal.”

5.  The question in the present application is whether the Court of Appeal’s judgment, arising as it did on a reference to it on a point of law pursuant to section 81 of the CPO, is a final judgment within section 31 of the HKCFAO.

6.  The underlying criminal prosecution concerns a doctor charged with manslaughter in relation to her treatment of a patient who died after receiving a blood product.  At the trial before Barnes J,[4] the jury was unable to reach a verdict in respect of the charge against the applicant and the prosecution has sought a re-trial on dates to be fixed.  The re-trial was to have proceeded on the basis of the judge’s ruling dated 14 June 2017[5] that the test for gross negligence manslaughter is not just one of objective foreseeability of the risk of death but that the prosecution also needs to prove that the defendant was subjectively aware of that risk.

7.  In another unrelated case, [6] Barnes J followed her ruling in this case as regards the test for gross negligence manslaughter but, on the prosecution’s application, had reserved the point of law arising from her ruling to the Court of Appeal under section 81 of the CPO.  In the light of that reference, the applicant in the present case then applied to join the proceedings referred to the Court of Appeal.  Following a consolidated hearing, the Court of Appeal handed down its judgment on 16 November 2018.[7]

8.  The conclusion of the Court of Appeal on the point of law was that Barnes J’s ruling was wrong. Macrae VP, giving the judgment of the court, said at [67]:

“In conclusion, our answer to the Question of Law reserved is that ‘the breach of the duty by the defendant being capable of being characterised as gross negligence and therefore a crime’ is to be proved on the objective reasonable man test only, in accordance with the terms of this judgment. The prosecution is not required to prove that the defendant was subjectively aware of the obvious and serious risk of death to the deceased. Accordingly, the proper direction in each case should be based upon that set out in Direction 63A of the Hong Kong Judicial Institute’s Specimen Directions in Jury Trials.”

9.  In its judgment certifying the point of law for this Court, the Court of Appeal recognised that the point arising on the jurisdiction issue was not “at all clear-cut” since its judgment was “effectively in response to an interlocutory application on a question of law pursuant to section 81”.[8]

10.  Before the Court of Appeal, the respondent’s stance was that it was reasonably arguable that the decision of Barnes J, albeit interlocutory on a question of law, was susceptible of an appeal to the Court of Final Appeal.  The respondent now goes further and expressly does not dispute that the Court of Appeal’s decision on the question of law reserved under section 81 is susceptible to an appeal to the Court of Final Appeal.[9]

11.  In our view, the judgment of the Court of Appeal is properly to be regarded as a final judgment for the purposes of section 31 of the HKCFAO.

12.  In construing what is a final judgment in section 31 of the HKCFAO, it is appropriate to apply the approach adopted in Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd & Anor,[10] which was a decision on whether a decision under Order 14A of the Rules of the High Court[11] is a final or interlocutory order.  On the “application approach” applied in that case, a decision may be final “even if it does not finally determine the whole action”.[12]  There, the Court of Final Appeal considered “the purpose and substance of the application, the issue dealt with and determined by the court and the effect of a determination of this issue on the rights of the parties, the further conduct of the proceeding and the final disposal of the whole action.”[13]  It held that a broad commonsense approach should be adopted and that if the issue dealt with and determined by the court is a “substantive part of the final trial” or a “crucial issue” in the case or a point “that goes to the root of the case” or a “dominant feature of the case”, then the order or judgment, even if it did not finally dispose of the whole action, should nevertheless be regarded as a final judgment.[14]

13.  On this basis, there is good reason to treat the judgment of the Court of Appeal’s from Barnes J’s ruling on the question of law as a final judgment for the purposes of section 31 of the HKCFAO. 

14.  The ruling of Barnes J was conclusive of the basis on which she was proposing to instruct the jury as a matter of law on one of the elements of the offence of gross negligence manslaughter.  Hence, it was appropriate for the Court of Appeal to hear an appeal from that ruling in order to determine if, as a matter of law, she was correct.  The Court of Appeal having now determined to the contrary, the judge will be bound by the Court of Appeal’s decision that she should instruct the jury on its view of the law, i.e. that the relevant breach of duty was to be proved on an objective reasonable man test and that the prosecution need not also prove the defendant was subjectively aware of the risk of death.

15.  The correct mental element for the offence charged is plainly a substantive part of, or crucial issue in, the trial and likely to be a dominant feature of the case.

16.  Furthermore, if there were no jurisdiction to appeal, it would mean that the applicant’s re-trial will proceed on the basis of the Court of Appeal’s judgment and, if convicted, on any appeal to the Court of Appeal, that court would be bound by its earlier judgment, so that, on this issue of law, the applicant would inevitably lose her intermediate appeal and, to challenge the conviction, would then have to pursue an appeal to the Court of Final Appeal.  As the applicant rightly submits, this would be “unduly cumbersome”.[15]

17.  The only reported case addressing the meaning of “final judgment” in section 31 is Dizon v HKSAR.[16] In that case, which involved an appeal against a decision of a judge of the Court of First Instance to refuse bail , Ribeiro PJ held at [11]:

“Under s.31 of the Court’s statute, the Court has a discretion to grant leave to appeal only from any final decision of the Court of First Instance from which no appeal lies to the Court of Appeal. A final decision in that context must mean the lower court’s substantive decision disposing one way or another of the offence charged.” (Emphasis in original)

18.  That dictum should be read with care.  Ribeiro PJ was concerned with a case involving consideration of section 31(b) of the HKCFAO.  He was not saying that a final judgment in a criminal matter can only ever be a judgment which disposes one way or another of the offence charged.  Such a judgment would plainly be a final judgment for the purposes of section 31 but it does not follow that other judgments of the Court of Appeal could not also constitute a final judgment for those purposes.

19.  Here, although the Court of Appeal’s judgment in this case did not dispose one way or another of the offence charged, applying the broad commonsense approach advocated in Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd & Anor, it is clear that the judgment of the Court of Appeal sought to be appealed is a final judgment for the purposes of section 31 of the HKCFAO.  The Court of Appeal’s judgment has determined the mental element of the offence of gross negligence manslaughter that is to be applied in the applicant’s re-trial.  It will not be open to the applicant to argue to the contrary either at her re-trial or on any intermediate appeal to the Court of Appeal in the event she is convicted.  Like a ruling in civil proceedings under the Rules of the High Court on the summary procedure for disposing of a case on a point of law (under Order 14A) or on a preliminary issue (under Order 33), the Court of Appeal’s ruling in this case has finally determined the basis on which the applicant will be re-tried.

20.  In these circumstances, there are good reasons to hold that the judgment of the Court of Appeal giving rise to this application for leave to appeal is a final judgment of the Court of Appeal within the meaning of section 31 of the HKCFAO and we would so conclude.

Conclusion

21.  For these reasons, we granted leave to appeal in respect of the question of law set out at [1] above.  The appeal will be heard on 5 September 2019.

Mr Peter Duncan SC and Ms Deanna Law, instructed by Howse Williams, for the 3^rd Defendant in HCCC 437/2015 (Applicant)

Mr Andrew Bruce SC, on fiat, Mr Anthony Chau, ADPP (Ag.) and Ms Margaret Lau, SPP, of the Department of Justice, for the Respondent