HKSAR v. LAI CHUN HO

HCCC 213/2016

[2018] HKCFI 458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 213 OF 2016

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DECISION

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1.  The defendant faces three counts of Gross Negligence Manslaughter (GNM) in connection with a liquefied petroleum gas (LPG) taxi explosion at a garage in Wong Tai Sin on 26 April 2015, killing the owner of the garage, the taxi driver and a woman in the adjacent shop. The prosecution’s case against the defendant was that the explosion occurred as a result of the defendant doing work on the LPG tank of the taxi when he was not qualified to do so. It is alleged that by the defendant’s gross negligence in failing to take sufficient steps, among others, to ensure that there would be no leakage or accumulation of LPG from the fuel tank of the LPG taxi, the defendant unlawfully killed the three victims.

2.  A preliminary issue I have to decide is whether, for an offence of GNM in Hong Kong (HK), it is sufficient for the prosecution to prove all the elements in accordance with the guidelines enunciated in R v Adomako [1995] 1 AC 171: ie

(1) the existence of a duty of care by the defendant to the deceased;

(2) breach of that duty by the defendant;

(3) the breach of the duty by the defendant caused the death of the deceased; and finally

(4) the breach of the duty by the defendant being capable of being characterised as gross negligence and therefore a crime (the last element),

with the last element to be proved on the basis of an objective reasonable man test – as submitted by the prosecution; or that the test is a subjective one, as submitted by the defence.

3.  I have already decided, in the case of HKSAR v Lai Shui Yin [2012] 2 HKLRD 639, that in relation to the last element, the test for gross negligence was not only an objective reasonable man test, but the prosecution was also required to prove that the defendant’s state of mind was culpable.  In a more recent case of HKSAR v Chow Heung Wing, Stephen and Others, unrep. (HCCC 437/2015), I was invited by the prosecution to re‑visit my decision in Lai Shui Yin, submitting that two cases of the Court of Appeal (CA): (1) Secretary for Justice v Law Siu Kuen [2011] 1 HKLRD 1022 (decided before Lai Shui Yin); and (2) HKSAR v Ngai Hon Kwong [2016] 2 HKLRD 149 (decided after Lai Shui Yin) demonstrated that the proper application of Adomako (ie with the objective reasonable man test for the last element) has been adopted in Hong Kong.  I ruled against the prosecution and confirmed my earlier ruling in Lai Shui Yin.

4.  In the present case, the prosecution, represented by Mr Jonathan Man, Senior Assistant Director of Public Prosecutions and Mr Anthony Chau, Senior Public Prosecutor, again invited me to re‑visit this issue.  The prosecution framed the issue as follows:

“For an 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 characterized as gross negligence and therefore a crime’ (‘the last element’), be proved based on the objective reasonable man test only (as held in Adomako, Secretary for Justice v Law Siu Kuen [2011] 1 HKLRD 1022 and HKSAR v Ngai Hon Kwong [2016] 2 HKLRD 149) 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 (as held in HKSAR v Lai Shui Yin [2012] 2 HKLRD 639 and HKSAR v Chow Heung‑wing, Setphen & Ors, unrep., HCCC 437/2015?”

Submission of the prosecution

5.  The prosecution submitted that in relation to the last element of the offence of GNM as identified in Adomako, the proper test to be applied should be an objective reasonable man test only.  The defendant’s foresight of the relevant risk of death is not an ingredient of GNM.  It is simply a factor to take into account when considering whether the defendant was grossly negligent in relation to the killing.

6.  In support of this proposition, the prosecution’s principal arguments are as follows:

(a) The effect of Sin Kam Wah[1] overruling R v Chau Ming Cheong[2] is that Caldwell/Lawrence reckless direction was no longer applicable and that if recklessness was relied on by the prosecution, the test had to be in accordance with R v G[3]; as far as the law on GNM is concerned, the Court of Final Appeal (CFA) did not impose an additional requirement that the prosecution must prove the defendant’s state of mind was culpable;

(b) The post‑R v G GMN cases did not follow the “salutary principle” as discussed in R v G;

(c) This Court should follow the Court of Appeal decisions in Ngai Hon Kwong and Law Siu Kuen.

Effect of the CFA decision in Sin Kam Wah

7.  The prosecution referred to the case of Sin Kam Wah and submitted that whilst the CFA extended the principles established in R v G beyond cases involving arson and expressly overruled Chau Ming Cheong (a manslaughter case) and Dung Shue Wah[4] (a rape case) where both cases turned on the issue of recklessness, the emphasis of the CFA was to make it clear that in relation to the issue of “recklessness”, the correct test to be applied was the one laid down in R v G as opposed to Caldwell/Lawrence.  There was no discussion by the CFA about Adomako or whether recklessness is no longer a fault element in GNM.  The CFA did not make any ruling that the prosecution must prove that the defendant was subjectively aware of the relevant risk in order to establish manslaughter on the basis of breach of duty.  There is nothing in Sin Kam Wah to show that GNM must require the R v G brand of recklessness.

The post-R v G cases

8.  The prosecution submitted that if the criminal culpability principle set out in R v G cases is meant to apply to GNM, making subjective recklessness a fault element, one would expect the courts post‑R v G to follow this approach.  However, the authorities such as R v Misra and Srivastava [2005] 1 Cr App r 21, R v Alan James Mark Nationwide Heating Services Ltd [2004] EWCA Crim 2490, and R v Rose (Honey) [2017] EWCA Crim 1168 suggested otherwise.

9.  In the present case, the prosecution also drew support from two Australian cases: R v Lavender (2005) 222 CLR 67 and Patel v The Queen (2012) 247 CLR 531.

10.  In Lavender, the High Court of Australia, when considering the issue of malice in a case of involuntary manslaughter by criminal negligence, held (at p 87 in para 60):

“Counsel for the respondent in this Court attempted to persuade the Court that Nydam v The Queen should not be followed, and that manslaughter by criminal negligence requires a subjective appreciation by the offender that the conduct engaged in is unsafe. This would bring this form of involuntary manslaughter into disconformity with the other form of involuntary manslaughter dealt with in Wilson v The Queen. Furthermore, it is erroneous in principle. This branch of the criminal law reflects the value placed by the law upon human life. Giles JA was right to say, in the present case, that ‘appreciation of risk is not necessary for a sufficiently great falling short of the objective standard of care, and .... the law would be deficient if grossly negligent conduct causing death could not bring criminal punishment unless the accused foresaw the danger.” (Emphasis added)

11.  In Patel, the High Court of Australia, in considering the test of criminal negligence, held (at p 556 in paras 87 and 88):

“87. Because of the value of the law places upon human life, it punishes grossly or criminally negligent conduct which causes death or grievous bodily harm, and it does so regardless of the subjective intentions of the accused or the accused’s appreciation of risk involved in his or her conduct.

88. The test applied to conduct which is alleged to amount to gross or criminal negligence in the context of the crime of manslaughter, or grievous bodily harm, is an objective one .... The test does not require that an accused have an appreciation of, or an indifference to, the risk created by the conduct in question. The only criterion necessary is an intention to do the act which inadvertently causes death or grievous bodily harm.” (Emphasis added)

12.  The prosecution also relied on what was said by the learned author in an article “Reckless Manslaughter” in [2017] Crim L R 763 (at p 776 in para 2):

“Furthermore, things had moved on beyond Lawrence/Seymour with the House of Lord’s decision in Adomako. Thus it is defensible (in the doctrinal sense) for the courts to view G as having no bearing on the understanding of ‘recklessness’ adopted in GNM. As a matter of theory, it would be preferable if mens rea words such as recklessness were used consistently in the criminal law (and the language of recklessness simply dropped in this context, in favour of gross negligence), but there is no doctrinal necessity for the courts to conclude that manslaughter must now require G’s brand of recklessness. It would be better – if this approach is to be persisted in – to explain that the case for a finding of gross negligence is strengthened where the defendant was aware of the risk of death (or serious?) injury attaching to her conduct, and eschew talk of recklessness altogether.” (Emphasis added)

Relevant HK Cases

13.  The prosecution submitted that the CA had in the case of Ngai Hon Kwong adopted the test in Adomako, cited with approval the following passage from the judgment of R v Evans [2009] 1 WLR 1999 (at para 71):

“In our judgment, consistently with R v Adomako [1995] 1 AC 171 and the link between civil and criminal liability for negligence, for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise.” (Emphasis added)

14.  and then went on to say (in paras 72 to 74)

“72. We are satisfied that in this case there was evidence capable of establishing the existence of a duty of care by the applicant to the deceased. It arose when he splashed inflammable liquid on the deceased, thereby placing him in a life‑threatening situation. That duty would have continued until the applicant removed the risk of harm.

73. However, instead of acting to remove or neutralise the risk of harm the applicant actually acted in a way that ensured the potential harm was realised.

74. By igniting a naked flame before the risk of harm had been removed, the applicant breached the duty of care he owed to the applicant and there is no doubt that it led to the death of the deceased. Igniting a naked flame in these circumstances is capable of being determined by a jury as grossly negligent. There being evidence before the jury capable of establishing each of the elements of the offence of gross negligence manslaughter, we are in no doubt that this was a verdict which should have been left to the jury.” (Emphasis added)

15.  The prosecution submitted that the CA did apply an objective test for GNM and there was no discussion that the defendant’s subjective knowledge of the risk of death must be regarded as an ingredient to such an offence.

16.  The prosecution also submitted that the CA in Law Siu Kuen cited Adomako with approval.

17.  The prosecution submitted that this Court should follow the said CA decisions with regard to the test of GNM.

18.  Apart from submitting that this Court was bound by the said two CA decisions, the prosecution also submitted that the Privy Council case of Kong Cheuk Kwan v R [1986] 4 HKLR 648 (a case of GNM involving the collision of two hydrofoils), which was not referred by the CFA in Sin Kam Wah, is binding on this Court, with a caveat that this authority should be read with caution given that the Caldwell/Lawrence direction on the issue of recklessness is no longer part of the law in Hong Kong.

19.  In Kong Cheuk Kwan, the Privy Council held that the model direction suggested in motor manslaughter cases (R v Lawrence and applied in R v Seymour), requiring proof that the vehicle was in fact being driven in such a manner as to create an obvious and serious risk of causing physical injury to another, and that the defendant so drove either without having given any thought to the possibility of these being such a risk, or having recognised that there was such a risk, nevertheless took it, was applicable in that case.  The defendant’s subjective awareness was not a prerequisite.

20.  The prosecution further prayed in aid on the Specimen Directions issued by the Hong Kong Judicial Institute where it is suggested that for GNM, an objective reasonable man test should be applied.  The sample direction itself incorporated the elements of the offences as stated in Adomako and Mirsa.  There was no mention that the defendant’s subjective awareness of the risk of death is an ingredient of the offence.

21.  The prosecution submitted, relying on the CA decision in HKSAR v Lee Wai kei [2016] 5 HKLRD 795, that although the Specimen Directions have no legal authority, generally speaking, unless it is in very exceptional circumstances, judges should make reference to and follow such directions in directing the jury.

Submission of the defence

22.  Mr Francis Cheng and Mr Dixon Tse, counsel for the defendant, adopt the principles behind my ruling in Chow Heung Wing and Lai Shui Yin and submitted that the prosecution must prove that the defendant was subjectively aware of the obvious and serious risk of death to the deceased.

23.  The defence made submissions on the relevance of the defendant’s subjective state of mind in GNM cases generally, and in the context of the allegations in these proceedings.

24.  The defence submitted that a defendant’s subjective state of mind has always been relevant to a charge of GNM, even in the context of the approach in the United Kingdom.  The defence cited the case of Misra, in which the court held that GNM is not an absolute offence (para 57), and that even the so‑called “objective test” enunciated in Adomako would require some recognised element of fault by the offender (Para 41).  The English Court also commented that it is too “narrow” to conclude that GNM did not require any proof of any specific state of mind, and that the defendant’s state of mind is irrelevant (para 56).  A defendant’s state of mind has always been relevant to a charge of GNM.

25.  The defence also relied on the recent case of Rose and submitsthat the English CA emphasised that the test is not merely “objective”, but also “prospective”, in that it is essential to consider the defendant’s actual knowledge at the time of the alleged breach, and not what the defendant “would, could and should have known as a competent person” (citing para 80 and 84 of the judgment).  The defence submitted that the test of reasonable foreseeability must be approached by reference to the subjective knowledge of the defendant.

26.  In the present case, the defence submitted that due to the explosion destroying the entirety of the garage, there is no direct evidence as to what the defendant actually saw, heard or knew at the time when he allegedly repaired the LPG taxi (which is not admitted).  In order to enable the jury to consider reasonable foreseeability of any obvious and serious risk of death on the part of the defendant, the only way is to ask the jury to consider the subject state of mind of the defendant: what he actually knew at the time of the alleged breach of duty.

27.  The defence submitted that GNM is a “truly criminal” offence and makes reference to my earlier ruling in Chow Heung Wing, in which I considered the principles laid down in Gammon (Hong Kong) Ltd v AG [1985] AC 1, Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142, and Kulemesin v HKSAR (2013) 16 HKCFAR 195 (that mens rea is presumed to be required to establish criminal liability, in particular where the offence is truly criminal in nature), and my ruling that such principles were of general application to offences other than statutory offence (the more serious the offence in terms of penalty and social obloquy, the less likely the presumption (that mens rea is required to establish criminal liability) will be held to have been supplanted.)

28.  Finally, the defence referred to the fact that the defendant was originally charged on 22 October 2015 with two regulatory offences:

(a) Carrying out work on or in relation to a gas pipe, not being a competent person or without under the supervision of a competent person: Regulations 16 and 49(7) of the Gas Safety (Gas Supply) Regulations (Cap 51B);

(b) Wilfully and without reasonable excuse did anything while at work likely to endanger himself or other persons: s 6B(3) of the Factories and Industrial Undertakings Ordinance (Cap 59).

Subsequently, the defendant was arrested and charged with the more serious offence of GNM on 12 January 2016.

29.  The defence submitted that while offence (a) might be subject to the principles of presumption of mens rea laid down in Hin Lin Yee and Kulemesin, offence (b) specifically requires the proof of subjective wilfulness as mens rea.

30.  The defence further submitted that if proof of the defendant’s subjective state of mind is not required for a “truly criminal” offence of GNM on the one hand, and yet on the other hand, proof of subjective wilfulness is required for the regulatory offence (b) under the Factories and Industrial Undertakings Ordinance, such situations would appear to be undesirable and contrary to the underlying principle expressed in R v G and approved in Sin Kam Wah.

My consideration of the submission

What was decided in Lai Shui Yin?

31.  As in the case of Chow Heung Wing, I think it useful to re‑cap, briefly, what I have decided in Lai Shui Yin.

32.  In Lai Shui Yin (a case involving GNM), an issue arose as to the effect of the judgment of the CFA in Sin Kam Wah (a case involving Misconduct in Public Office) in overruling the CA’s decision in Chau Ming Cheong (a case of GNM) in relation to the elements of GNM.  After considering a number of authorities, including the case of Adomako and other English authorities, I came to the conclusion that the effect of such an overruling by the CFA was that the positon in HK is different from that of the United Kingdom (UK).  I ruled that the elements/ingredients of the offence of GNM set out in Adomako are applicable, meaning that the jury has to decide (1) whether the defendant has been in breach of a duty of care towards the deceased; (2) whether that breach caused the death of the deceased; and (3) whether that breach of duty should be characterised as gross negligence and therefore a crime.  However, I ruled that the test as to what amount to gross negligence is not just an objective reasonable man test (as in the case of Akomako, which was adopted in the subsequent case of Misra in the UK), but that the prosecution must prove that the defendant’s subjective state of mind was culpable before the defendant can be found guilty of the offence.

33.  I was of the view that the underlying principle expressed by Lord Bingham in R v G, which was soundly approved by the CFA in Sin Kam Wah, was of importance.  This underlying principle was that a conviction of a serious crime should depend not only on what the defendant had done (actus reus), but also whether the defendant’s state of mind (mens rea) was culpable.  I was of the view that by adopting the gross negligence test propounded in Adomako, a person who genuinely did not perceive a risk of death could still be found guilty of manslaughter on a reasonable man test – even when a jury is directed to consider the defendant’s subjective state of mind.  The law should not be such that a person who genuinely did not perceive a serious and obvious risk of death should be exposed to a conviction of such a serious offence.

34.  It should be noted that when I made my decision in Lai Shui Yin, I was already aware of the English post-R v G cases maintaining the test for GNM to be an objective test.  I have given my reasons why I did not follow the English decisions (paras 53-56 of my judgment):

“53. In coming to my decision, I take into account the fact that — unlike the courts in the UK — the CFA in Sin Kam Wah extended R v G & Another beyond cases involving arson and expressly overruled Chau Ming Cheong. There was no discussion by the CFA about Adomako or whether recklessness is no longer a fault element in gross negligence manslaughter cases. There is certainly no discussion in relation to the issue of ‘subjective recklessness’ as proposed by academics and lawyers in the UK after R v G & Another. There is no way of knowing, had the CFA considered Adomako, whether it would have come to the same conclusion as the courts in the UK.

54. Whilst it is possible to argue that the effect of overruling Chau Ming Cheong is to overturn Stone in relation to the notion that reckless disregard to the health and welfare of the victim was sufficient for a conviction of gross negligence manslaughter, and to overrule the Court of Appeal’s decision on the applicable test of recklessness (i.e. an objective test), I think that is too narrow a view to be taken. I agree with Mr Chan that the underlying principle expressed by Lord Bingham in R v G & Another and soundly approved by the Court of Appeal in Sin Kam Wah is of importance here. Whether the term recklessness is used or not, the jury has to decide whether there was a serious and obvious risk of death in all the circumstances and whether what the defendant has done or failed to do amounts to gross negligence. If the test is an objective reasonable man test (i.e. the circumstances were such that a reasonably prudent person would have foreseen a serious and obvious risk of death), then even with a direction to the jury to the effect that the state of mind of the defendant should be taken into consideration for as well as against her, one cannot exclude the possibility that a jury may find the defendant grossly negligent on an objective view even when the defendant genuinely did not appreciate there was a serious and obvious risk of death.

55. The law should not be such that a person who genuinely did not perceive a serious and obvious risk of death should be exposed to conviction of such a serious crime as manslaughter on the strength of what someone else would have appreciated.

56.  For these reasons, even though the relevant English authorities are persuasive, I decline to follow them in relation to the test to be applied.  Instead, it is my ruling that the position in Hong Kong is different from that in the UK.  It is not enough for the prosecution to simply rely on the objective reasonable man test — with the judge directing the jury to take into consideration the subjective state of mind of the defendant, both for and against the defendant — the prosecution has to prove that the defendant was subjectively aware of the obvious and serious risk of death to the deceased in order to establish manslaughter on the basis of breach of duty in this case.”

35.  While I appreciate the reasons and sentiments expressed in the Australian authorities cited by the prosecution, I still maintain my reasoning expressed in Lai Shui Yin and confirmed in Chow Heung Wing.

36.  As for the two HK CA decisions, I have already made my ruling thereof in Chow Heung Wing (paras 25‑29):

“25. Law Siu Kuen is a case involving a defendant who faced 6 counts of Manslaughter and 6 alternative counts of Dangerous Driving causing Death. He pleaded guilty to 6 counts of Manslaughter. The sentencing Judge said it was unlikely that any effective distinction could be made between Manslaughter and Dangerous Driving causing Death for the purpose of sentencing. The defendant was sentenced to concurrent terms of 6 years’ imprisonment. The Secretary for Justice applied to review the sentences imposed. It was in the context of its discussion of the differences between Manslaughter and Dangerous Driving causing Death that the CA made reference to Adomako. Stock V‑P, who gave judgment of the CA, said:

‘58. As for manslaughter, it has been said that: “… of all crimes, manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions” (Andrews v Director of Public Prosecutions [1937] AC 576, 581) but what is required in the context of motor manslaughter is proof of breach of the duty of care towards the victim who has died, that that breach caused the death of the victim, and, importantly for present purposes, that “having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount” in the judgment of the jury “to a criminal act or omission.”: see R v Adomako [1995] 1 AC 171 at 187. The defendant's conduct “has to be such that it creates a very high degree of risk [of death] before it is to be classed as manslaughter”: see Brown v The Queen [2006] 1 AC 1, 16. The distinction is one which “recognises that there are degrees of turpitude which will vary according to the gravity of the risk created by the manner of a defendant’s driving”: R v Seymour, p 506. In the case of conscious risk‑taking, of which the instant case is a clear example, it will be appropriate to use the word “reckless” in its ordinary meaning as part of the test and, in that regard, what has to be proved, in the case of motor manslaughter, is an obvious risk of death from the defendant's conduct, objectively assessed, and an indifference to that risk on the part of the defendant, or foresight thereof plus a determination nevertheless to run it: this is an adaptation of the test suggested by R v Lidar (unrep., Court of Appeal, 11 November 1999) , referred to in Archbold 2011, p 1859 para 19‑110.’

26. Whilst Stock V‑P have cited Adomako, it is clear that in that case, the CA was dealing with a case of ‘conscious risk‑taking’ (which denotes a subjective state of mind). Stock V‑P did not consider the very issue I had to decide in Lai Shui Yin (ie the test for the last element). I do not see how the judgment of Law Siu Kuen, if it had been referred to me at the time, would have affected my decision in Lai Shui Yin.

27. As for the case of Ngai Hon Kwong, the defendant in that case was charged with murder of his long‑term friend. The prosecution’s case was that the defendant deliberately splashed alcohol on the deceased and set him alight. The defence was that the deceased died as a result of an accident. The defendant asserted that he was in a bad temper after arguing with his partner (not the deceased). He tripped while carrying the bottle of alcohol and spilt the liquid on the deceased, having spilt some onto his own arm. The defendant then decided to smoke the dangerous drug Ice and he lit a cigarette lighter. His hand caught fire so he threw away the lighter, which then set the deceased on fire. The trial judge was concerned about the effect of Ice on the defendant and directed the jury on the alterative charge of manslaughter (by unlawful and dangerous act). An issue before the CA on appeal was whether the trial judge had failed to direct the jury on GNM. It was in that context that the CA made reference to Adomako, setting out the four elements of GNM (at para 68):

‘68. The elements of gross negligence manslaughter were set out by the House of Lords in R v Adomako (John Asare) [1995] 1 AC 171. They are:

1) the existence of duty of care by the defendant to the deceased;

2) breach of that duty by the defendant;

3) the breach by the defendant of the duty causing the death of the deceased; and

4) the breach of the duty by the defendant being capable of being characterised as gross negligence and therefore a crime.’

28. The CA went on to say:

‘69. Lord Mackay of Clashfern LC in a judgment with which the other members of the House agreed, said at 187C‑E:

“The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the [deceased], was such that it should be judged criminal.

....

The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.”

70. All four elements are matters for the jury to decide and the Judge's role is merely to determine whether there is evidence capable of establishing each element.

71. In R v Evans (Gemma) [2009] 1 WLR 1999 the Court of Appeal of England and Wales was dealing with a situation where there was a failure to act when a duty to act arose.  As to when a duty to act arose Lord Judge CJ, in giving the judgment of the court, said at 2007H:

“In our judgment, consistently with R v Adomako [1995] 1 AC 171 and the link between civil and criminal liability for negligence, for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise.”

72. We are satisfied that in this case there was evidence capable of establishing the existence of a duty of care by the applicant to the deceased.  It arose when he splashed inflammable liquid on the deceased, thereby placing him in a life‑threatening situation.  That duty would have continued until the applicant removed the risk of harm.’

29. The CA was only concerned with the question whether GNM should have been left as an alternative to the jury in the particular circumstances of the case.  The CA was not concerned with the test to be applied in relation to the last element.  The reference to Evans (Gemma) was in the context of ‘when a duty to act arose’, as submitted by counsel for D3.  There was no discussion or consideration on what the test in relation to the last element was, as a result of the CFA overruling Chau Ming Cheong – the very issue that I was called upon to decide in Lai Shui Yin.”

I am not persuaded to change my decision.

37.  As to the Privy Council Case of Kong Cheuk Kwan, as submitted by the prosecution, one has to read that case with caution since the Caldwell/Lawrence direction on the issue of recklessness is no longer part of the law in Hong Kong.

38.  It is true that the CFA did not mention Kong Cheuk Kwan in Sin Kam Wah, having considered the reasoning of the CFA in taking the opportunity to overrule the case of Chau Ming Cheong, I am not persuaded by the prosecution that I should followed the decision of the Privy Council in Kong Cheuk Kwan.

39.  I certainly appreciate that the Specimen Directions for GNM say nothing about a subjective element.  On the other hand, I had heard full arguments in Lai Shui Yin and Chow Heung Wing before I decided and confirmed respectively my view that it was necessary for the prosecution to prove the subjective element.  I had given reasons why I was of the view that the HK situation is different from that of the UK.  I therefore did not follow the exact wordings of the Specimen Directions for GNM in both Lai Shui Yin and Chow Heung Wing, but made adjustments to the Specimen Directions as required by the particular circumstances of both cases, incorporating the subjective element.

40.  As to the defence submissions on the relevance of the defendant’s subjective state of mind in GNM cases generally, I do not think there is any dispute that even in the English cases, the subjective state of mind, if present, can and should be taken into consideration by the jury.  I have already ruled in Lai Shui Yin that a person who genuinely did not perceive an obvious and serious risk of death should not be exposed to conviction for a serious crime as manslaughter on the strength of what someone else would have appreciated, therefore it was not enough for the prosecution to simply rely on the objective reasonable man test, with the judge directing the jury to take into consideration the defendant’s subjective state of mind both for and against him.

Conclusion

41.  For these reasons, I am not persuaded by the prosecution that I should change my views and reverse my own decision in Lai Shui Yin, confirmed in Chow Heung Wing.

[1] Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192

[2] R v Chau Ming Cheong [1983] HKLR 187

[3] R v G [2004] 1 AC 1034

[4] R v Dung Shue Wah [1983] 2 HKC 30