HKSAR v. MAK WAN LING

HCCC 437/2015

[2020] HKCFI 3069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 437 OF 2015

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REASONS FOR SENTENCE

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Charge

1.  The defendant Mak Wan-ling faced one count of manslaughter, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance, Cap.212.

2.  The defendant was originally tried together with two other defendants, Chow Heung-wing and Chan Kwun-chung, each facing one count of Manslaughter.  After a trial which took 100 days in 2017, the jury convicted Chow Heung-wing and Chan Kwun-chung but was unable to reach a verdict in respect of this defendant.  The defendant thus had to face a retrial on her own, with Chow Heung-wing, Stephen and Chan Kwun-chung being named in the indictment.

3.  The defendant pleaded not guilty to the charge and she was found guilty unanimously by a jury of 9.

Facts of the case

4.  This case centres upon a procedure known as CIK Therapy launched and marketed by the DR group at the price of about $59,500 per treatment to customers including the deceased Chan Yuen Lam (ChanYL).

5.  At the material time, the DR Group was operating 38 beauty centres throughout Hong Kong, including the DR Esthetic Centre (Causeway Bay) Limited, Hong Kong Mesotherapy Centre Limited and a laboratory named Asia Pacific Stem Cell Science Limited (APSC).

6.  The DR Group was owned and controlled by Chow Heung-wing. Chan Kwun Chung (Billy Chan) was employed by Chow Heung-wing as a technician working at APSC.  The defendant was a qualified medical doctor (a GP) employed to work at clinics under the DR Group.

7.  CIK Therapy involved the drawing of a quantity of blood from a client of the DR Group at a clinic.  The blood was then sent to APSC for processing.  The processing involved the use of cytokine to induce the growth of killer cells for a period of around 14 days, at a temperature of 37 degrees Celsius and 100% humidity.  The processed blood product was then infused back into the same client.

8.  Three women, ChanYL, Wong Fung Kwan (WongFK) and Wong Ching Bor (WongCB), had their blood extracted by the defendant on 12 September 2012 at the Causeway Bay clinic. Explanation about the CIK Therapy was given by the defendant during consultation to each of the three women prior to the extraction of blood.  The extracted blood was sent to APSC for processing.

9.  Evidence before this Court showed that most people working at APSC were not aware of the fact that CIK processing was taking place there.  Evidence also showed that Billy, the person responsible for the processing of CIK cells, did not cause processed blood products to undergo any sterility tests, including bacterial tests, despite the fact that there were persons qualified and equipment available at APSC to carry out such tests.

10.  Evidence also showed that during the processing at APSC of the blood extracted from the three women, and other women including Chow Yan Yan (ChowYY) who was the elder sister of Chow Heung Wing, their blood products became contaminated with bacteria known as Mycobacterium Abscessus.

11.  Due to the lack of any bacterial tests, the presence of Mycobacterium Abscessus was not detected and the contaminated blood products, including the blood product of ChanYL, were sent out of APSC on 3 October 2012 to the Causeway Bay clinic for infusion.

12.  The defendant did not check with APSC to see whether bacterial tests had been conducted on the processed blood products of the three women prior to infusion.  She said in evidence that she trusted APSC and expected that such a basic and fundamental step would have been carried out by the laboratory.

13.  The contaminated infusate of each of the three women was infused directly into their blood streams by the defendant on 3 October 2012.

14.  In the case of ChanYL, she went home after the infusion and felt unwell.  She went to consult a doctor in private practice that same night, accompanied by her daughter.  She was still unwell in the next morning, complaining to her daughter that the pain was worse than being in labour when giving birth.  Her daughter accompanied her to go to the Causeway Bay clinic to look for the defendant.  As the defendant was conducting an operation in another clinic in Mongkok, an ambulance was called and ChanYL was sent to the Ruttonjee Hospital.

15.  ChanYL was diagnosed to be suffering from septicaemia, shock, disseminated intravascular coagulopathy, and adult respiratory distress syndrome.  Blood culture of her blood confirmed she was suffering from systemic bacterial infection caused by Mycobacterium Abscessus.

16.  Despite efforts by the doctors at the ICU, she died on 10 October 2012, a week after the infusion.  The cause of death was “Multi-organ Failure” due to “Mycobacterium Abscessus septicaemia”.

17.  The defendant was charged with the unlawful killing of ChanYL by Gross negligence.  There was no dispute that the defendant was a properly registered doctor responsible for administering the CIK blood product to ChanYL and that she owed a duty of care to ChanYL, her patient.

18.  There were four particulars of breach alleged in the indictment:

2(a)  failure to ensure a properly accredited laboratory or a properly qualified person was responsible for the preparation and production of the processed blood product of ChanYL;

2(b)  failure to ensure bacteria tests had been conducted on the said blood product and that such tests had been documented prior to administering it to ChanYL;

2(c)  administering the CIK Therapy to ChanYL without first having obtained from ChanYL a proper consent by reason of the defendant’s failure to inform ChanYL:

(i)  that CIK Therapy was still experimental for cancer patients and its efficacy was unproven or uncertain;

(ii)  there was no scientifically proven benefit to be derived from CIK Therapy on healthy patients such as ChanYL;

(iii)  the preparation of CIK Therapy involved culturing of blood cells in a medium exposed to open air during a period of time thus it carried a risk of infection or contamination of the patient on whom it was administered;

(iv)  the administration of CIK Therapy had risks of adverse effects or reactions which could be life-threatening;

(v)  there were various safe and non-invasive alternative means for enhancing or improving immunity in human bodies and the use of CIK Therapy was not necessary or medically indicated; and finally.

2(d)  failing to give sufficient regard for the fact that the intended use of CIK Therapy on ChanYL ought not to have been carried out in the circumstances.

19.  As the jury unanimously found the defendant guilty of manslaughter by gross negligence, having been directed on the 5 ingredients that the prosecution had to prove so as to make them sure of the defendant’s guilt, namely:

(1)  The defendant owed an existing duty of care to the deceased;

(2)  The defendant negligently breached that duty of care;

(3)  It was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death;

(4)  The breach of that duty caused the death of the deceased; and

(5)  The circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.

The jury must have found that the defendant was in breach of her duty to ChanYL, that it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death and indeed caused the death of the deceased ChanYL. They must have also been satisfied that the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction. Putting it another way, they must have been sure that, in all the circumstances, the defendant’s conduct, the defendant’s breach of her duty causing the death of ChanYL, fell so far short of what could reasonably be expected of her that such conduct required criminal punishment as opposed to disciplinary action or a civil claim for compensation.

20.  As mentioned, there were four particulars of breach pleaded in the indictment.  I am prepared, for the purpose of sentencing, to assume that 2(a) had not been proved on the strength of the evidence adduced.  I am, however, satisfied that the jury must have found the other three particulars of breach, ie. 2(b), 2(c) and 2(d), proved.

21.  I will set out the background of how and/or why the defendant was in breach of her duty.

22.  In respect of particular 2(b), the defendant admitted she did not make enquires with APSC whether bacterial tests had been conducted nor did she ask or look for any documentation certifying that such tests had been done.  She said she had received blood products from the Red Cross before and there was no certificate accompanying the blood product.  She was not taught to look for such.

23.  The defendant said she trusted APSC for the following reasons:

(1)  the medical director of APSC was her former lecturer, a haematologist of repute both locally and internationally;

(2)  APSC was owned by Dr Chow Heung Wing, her employer whom she trusted;

(3)  she believed the people who worked at APSC had high qualifications;

(4)  she had received products from APSC previously, including CIK blood products, and there was never any incident until October 2012; and

(5)  conducting bacterial tests was so basic and fundamental that it never occurred to her that such tests were not done.

24.  As for her breach of duty as particularised under 2(c) and 2(d), she gave her reasons why she believed CIK Therapy was of benefit to a healthy person, why she only mentioned side-effect of fever or flu-like symptoms which would be self-resolved in 48 hours to the patients, in particular to ChanYL, why she failed to tell ChanYL the risk of infection and contamination and so on.

25.  In short, the defendant trusted her employer Chow Heung Wing, who was a registered medical doctor many years senior to her.  She came to hear about NK Therapy for healthy persons when she first met a Professor Oda from Japan in November 2011 during a dinner gathering.  She thought NK cells were the same as CIK cells, both being white blood cells.  She was given a brochure from Professor Oda about the clinic the latter was running in Japan which she read.  In February 2012 she joined a trip to Guangzhou organized by Dr Chow.  At a military hospital there she met a Professor Xiao who mentioned during a lecture the use of CIK Therapy on healthy persons.  She was given a pamphlet by Professor Xiao about DC/CIK therapy for cancer patients and she read it on the train journey back.

26.  The defendant said as a result of what she learnt from these two professors, and from reading various materials and documents provided to her and from her own research on the internet, she came to believe that CIK Therapy was of benefit to healthy persons even though most of the materials she read concerned CIK Therapy being used on cancer patients.  She believed that CIK Therapy would boost the immunity of healthy persons, thus improving their general health.  She also believed that the CIK Therapy conferred psychological and social benefit to healthy persons.  She believed the risk was, only fever or flu-like symptoms which would be resolved in 48 hours.

27.  As to the other side-effects mentioned in the material she had read, she was of the view that they would only happen to cancer patients, not to healthy persons.

28.  Based on such belief and after conducting the risk-benefit analysis, she was of the view that the benefit outweighed the risk in the case of ChanYL.  She admitted she did not tell ChanYL any of the particulars under 2(c) (i) to (v).

Personal Background of the defendant

29.  The defendant is 39 years of age. She has a clear record prior to this conviction.  She is married and has a 4-year old daughter.  She graduated from the Chinese University of Hong Kong with a Bachelor’s degree in Medicine in 2006.  After finishing her houseman training she took part in a training course with a view to become a specialist in anaesthesiology.  She discontinued after receiving 21 months of this special training and 3 months’ training in ICU as she had got married and she did not want to work night-shifts.  She has been a holder of general medical practitioner’s certificate from 1 July 2007.  She started working for the DR Group since 2009.

Mitigation

30.  In mitigation, Mr Duncan submitted that following the incident the defendant did not work for some time. She was herself severely affected by the consequences of the incident.  She suffered from chronic gastritis and depression, requiring medication.  In 2013, the defendant joined a charity “Mother’s Choice” as a volunteer.  The job enabled her to recover some of the self-esteem and her confidence which had been affected as a result of the incident.  In 2014, she started work part-time as a GP in a medical practice.  She then worked full-time until late 2017. Since then she worked part-time again due to the need to spend more time with her daughter, who suffers from slow development and requires special education needs.

31.  The defendant also worked as a volunteer in the community influenza vaccination programme run by the University of Hong Kong.

32.  I was provided with glowing testimonials on the defendant from a number of medical doctors and from personnel involved with Mother’s Choice and the Community Influenza Vaccination Programme of the University of HK.  These are people who had worked with and came to know the defendant.  I do not think it necessary to reiterate all that was said about her.  Suffice it to say that the defendant was described as a diligent, caring, hard-working and supportive individual.

33.  Mr Duncan submitted that it was obviously a terrible error of judgment on the part of the defendant, contributed to by a number of factors.  Firstly, her perhaps misguided loyalty to her employer.  Secondly, the excessive amount of trust that she chose to place in other persons.  Thirdly, her carrying out of her professional duty and administering all these products in a beauty centre in what appears to be a surprisingly low level of regulatory control.  Fourthly, perhaps her relative inexperience as a practising doctor.

34.  Mr Duncan submitted that there are significant features to distinguish the defendant from either Dr Chow or Billy Chan.  In distinguishing the defendant’s case from that of Dr Chow’s, apart from the fact that Dr Chow owned the DR Group and was the instigator who marketed and profited from the CIK Therapy, Mr Duncan further submitted that there was no evidence the defendant was involved in the management of the DR Group.  There was also no evidence that the defendant profited unreasonably from the amount charged for the CIK Therapy apart from receiving her salary, reminding this Court that Mr Bruce SC expressly conceded, before the jury retired to deliberate, that the prosecution was not relying on the amount of $59,500 per treatment for the CIK Therapy with regard to the defendant.

35.  In respect of Billy Chan, Mr Duncan submitted that it would appear, as mentioned by this Court to the jury during the summing up, that Billy Chan deliberately defied what was a fundamental requirement in the cell process.  Billy Chan’s case is very different from that of the defendant’s.

36.  Mr Duncan submitted that the defendant would suffer greatly as a result of the conviction.  Apart from the period in which she is detained, she faced enormous stress and adverse publicity over a very long period of time.  It’s more than 8 years since the incident happened.  The defendant was arrested in 2015, three years after the incident and was initially tried in 2017 and then only in 2020 that this trial concluded.  It is highly likely that her conviction will bring an end to her medical career.  She is also facing a number of personal injury claims in the civil court.

37.  Mr Duncan submitted there is no sentencing tariff for the offence of manslaughter.  The defence team assembled 5 United Kingdom cases for the consideration of this Court.  Mr Duncan noted that the facts of those cases were in no way identical to the present case, but that they were the best the defence team could do in giving this Court some indicators of the seriousness in which the United Kingdom Courts view medical negligence.  The five cases are:

(1)  R v Misra [2004] EWCA Crim 2375

(2)  R v Bawa-Garba [2016] EWCA Crim 1841

(3)  R v Garg (Sudhanshu) [2013] 2 Cr. App.R (S) 30

(4)  R v Bala Kovvali [2014] 1 Cr. App. R (S) 33

(5)  R v Sellu [2016] All ER (D) 114

38.  Another factor Mr Duncan asked this Court to take into consideration is the concept that a doctor working in a beauty centre where that person would be thinking of the “boss”, as opposed to a doctor working in a medical practice where that person would be mixing with other doctors and be familiar with medical discipline.

39.  The defence asked this Court to take the matters advanced into consideration and to give the defendant what leniency can justifiably be given, having regard to the length of the custodial sentence which will inevitably follow.

Consideration of the sentence

40.  Section 7 of the Offence against the Person Ordinance Cap 212 provides: Any person who is convicted of manslaughter shall be liable to imprisonment for life and to pay such fine as the court may award.

41.  There are no guideline tariffs for manslaughter cases, as they varied significantly in their circumstances.

42.  Whilst the defendant was found guilty of manslaughter by Gross Negligence in that she was in negligent breach of her duty of care, as a registered medical doctor, to her patient ChanYL, the facts of this case are very different from the usual medical negligent cases.

43.  Most of the medical negligent cases (such as those 5 cases submitted by the defence team) involve patients who were not healthy individuals.  They were either sick, or having undergone some kinds of surgery and was recuperating when the doctors or medical staff failed to recognise obvious symptoms exhibited by the patients and failed or delayed in giving timely treatment, resulting in the death of the patient.  I do not think any purpose will be served for me to set out the facts of each of the 5 cases submitted.  Suffice it to say that the sentences imposed ranged from 18 months suspended for two years (Misra) and two years suspended for two years (Bawa-Garba) to 2 ½ years’ imprisonment (Sellu) for cases in which the defendant pleaded not guilty; and two years (Garg) to 2 ½ years (Bala Kovvali) for cases in which the defendant pleaded guilty.

44.  The length of the sentences no doubt reflect the seriousness of the breach committed by those medical professionals, which is not comparable to what had happened in this case, in my view.

45.  In the case of the victim ChanYL, she was a healthy woman of 46 at the time, running a Hong Kong style café (Char Charn Tien) with her husband and the two of them had two teenaged children.  She was a customer of the beauty centre part of the DR Group business and before she consulted the defendant, she already had one CIK Therapy administered by another doctor employed by the DR Group.  When ChanYL consulted the defendant on 12 September 2012, before her blood was extracted, ChanYL was not told that the CIK Therapy was an experimental treatment for cancer patients and its efficacy had not be proven; she was not told that there was no scientific proof that CIK therapy was of benefit to a healthy person; she was not told of the risk of bacterial contamination during the processing at a laboratory; nor was she told of the risk of adverse reaction upon infusion due to contamination or infection; she was also not advised that there were simple and non-invasive alternative methods for boosting her immunity instead of the CIK Therapy.  If ChanYL had been told of all of the above, I venture to say it would be highly unlikely that she would have consented to the treatment.

46.  As the defendant failed to properly inform and advise ChanYL of the true nature, effect and risk of CIK Therapy, the so-called consent given by ChanYL did not amount to an “informed consent” to receive the CIK Therapy.

47.  Furthermore, for reasons only known to Billy Chan, no bacterial tests were conducted either during the processing or before the process blood products left APSC.  That is despite the fact that such tests are basic and fundamental and, in the rudimentary protocol for the processing of CIK cells given to those investigating the incident at APSC, bacterial tests were mentioned as part of the steps.  As a result of the absence of such tests, the presence of Mycobacterium Abscessus in the processed blood products was not detected and they were sent to the Causeway Bay clinic ready for infusion on 3 October 2012.

48.  Due to the defendant’s breach of her duty, she failed to ensure that the processed blood products, in particular the blood product of ChanYL, were free from contamination before she administered the infusion, resulting in ChanYL suffering from septic shock and finally dying 7 days later.

49.  It must be remembered that the very fact that ChanYL was brought to see the defendant, a medical doctor, showed that ChanYL trusted the defendant, as her doctor, to properly advise her as to the suitability of her receiving the CIK Therapy, the benefit and risk of receiving such a treatment and so on. The defendant, unfortunately for ChanYL, failed miserably in that respect.

50.  I appreciate the defendant was not the one who was responsible for launching or marketing such a risky treatment in haste or making a huge profit from such treatment, as in the case of Chow Heung Wing, nor was she the one who failed to have the processed blood products undergo bacterial tests, as in the case of Billy Chan.  I accept that at the time she was a relatively inexperienced doctor who had not even practised medicine as a GP but was practising what she called cosmetic medicine on healthy persons in a beauty clinic setting.  It appears to me that she treated CIK Therapy not much differently from other beauty treatments she administered to her patients who were customers of the DR Group beauty centres.  I accept that she was perhaps in awe of Dr Chow her boss and she may have been operating under a misguided loyalty to her employer.  She also placed far too much trust on others and failed to exercise her own judgment independently, resulting in her blind or distorted belief that CIK Therapy was of benefit to healthy persons with little side effect.

51.  To me, the defendant was the last line of defence in this money-grabbing venture orchestrated by Chow Heung Wing and supported by Chan Kwun Chung.  Leaving aside her breach in failing to properly inform ChanYL of the nature and effect of, and the risk associated with CIK Therapy so that ChanYL would be able to make an informed consent, her failure to ensure that the processed blood products were free of contamination before infusion resulted in the processed blood product heavily contaminated with Mycobacterium Abscessus being infused directly into the blood stream of ChanYL, causing the death of ChanYL.  

52.  Having considered the circumstances of how the defendant came to be in breach of her duty causing the death of ChanYL, I am of the view that a starting point of 4 ½ years is appropriate in all the circumstances to reflect the criminality involved.

53.  I will now consider factors which may allow me to reduce the sentence.

54.  Having observed the defendant during two trials, and judging from the way she defended the case, I am satisfied that she truly regretted what she had done and what had happened to ChanYL, WongFK and WongCB. The defence did not challenge much of the prosecution case, for those they were not in a position to admit under S65C of the Criminal Procedure Ordinance, those facts were admitted under S65B, thus saving a lot of time during the trial.  I will take this factor into account to reduce the sentence, even though the defendant did not plead guilty to the charge.

55.  I was informed the defendant suffered from chronic gastritis and depression, which is understandable in the circumstances due to the enormous stress and pressure she must have been under.  The incident occurred in 2012 and the defendant was arrested in 2015, 3 years after the incident.  In 2017 the defendant was tried together with Chow Heung Wing and Chan Kwun Chung.  The trial overran badly due to the stance taken by the defence of Chow Heung Wing, and not by this defendant.

56.  During the first trial, I ruled that the test of “reasonable foreseeability” of the “serious and obvious risk of death” was a subjective one.  The jury was unable to reach a verdict in the case of the defendant.  After the conclusion of that trial, in another Gross Negligence Manslaughter case before me (the LPG taxi explosion case), I maintained my ruling on the relevant test of reasonable foreseeability.  The prosecution in that case took the case to the Court of Appeal and the defendant obtained leave to join in so as to advance submission in support of my ruling.  The Court of Appeal reversed my ruling and ruled that the relevant test was an objective one.  The defendant’s appeal to the Court of Final Appeal was unanimously dismissed by the Highest Court in Hong Kong.

57.  The re-trial of the defendant, with a different (and more unfavourable) test on this issue of reasonable foreseeability, only took place this year, resulting in the defendant having this matter over her head for 8 years.  The delay with the accompanying stress and pressure is certainly a factor I will take into account when considering the final sentence.

58.  I will also take into account what Mr Duncan has said on the defendant’s behalf in mitigation.  The defendant was a person with no previous criminal conviction.  As a result of this conviction, it is indeed likely that she will lose her qualification to practise as a general practitioner.  Further, as a result of her gross negligence, she has to face civil compensation claims as well.

59.  I am of the view that it would be appropriate for me to give the defendant a reduction of 3 months for saving the court’s time in the trial.  I will give the defendant a further reduction of 9 months to take into account, mainly, for having this stressful matter over her head for 8 years and for having to face a tougher test of reasonable foreseeability of the risk of death during the retrial, and, to a lesser extent, the personal circumstances of the defendant, including the likelihood of her being disqualified from practising as a doctor and having to face civil claims.

Actual sentence

60.  For the offence of Manslaughter by Gross Negligence, the defendant is sentenced to 3 ½ years’ imprisonment.