HKSAR v. CHOW HEUNG WING,STEPHEN AND OTHERS

HCCC 437/2015

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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RULING ON
ADMISSIBILITY OF EVIDENCE (General)

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1.  Further to the three areas I have already given my ruling on earlier (8 June 2017), I will give my ruling generally on the following areas to supplement my ruling as shown on the chart to be handed down.

Issues in relation to Cytokine‑induced killer (CIK) cell infusion therapy being an experimental process for the treatment of cancer; CIK should take place in a hospital and not in a clinical setting

2.  Counsel for D1 and D2 opposed to the admissibility of such evidence on the basis that the particulars of the breach of duty pleaded against D1 and D2 had nothing to do with whether CIK was an experimental process.  Whether such process should be done in a hospital and not in a clinic is irrelevant.  The reference to the knowledge in the indictment was only to set out the background to say the respective defendant “failed to take reasonable care”.

3.  The prosecution’s stance is that CIK was only an experimental process for cancer which should not have been introduced to healthy persons.  Having done so the defendants should ensure the blood products are safe.  Evidence about CIK being an experimental process and that it should only take place in a hospital setting are relevant.

4.  Whilst I have already ruled that the knowledge pleaded in the indictment cannot amount to a criminal offence for the purpose of my consideration of the concept of joint criminal enterprise, I disagree with counsel for D1 and D2 that such knowledge forms only the background to say the respective defendant failed to take reasonable care.

5.  I agree with the prosecution that such evidence is relevant and admissible.

Issues relating to safe system of work

6.  Counsel for each defendant made reference to the particulars of the breach alleged against each defendant.

7.  Counsel for D1 submitted that the whole case against D1 was that the death was caused by bacterial contamination.  The particulars of the breach centred on the contamination of the blood product: D1’s failure to ensure a qualified person was responsible for the preparation and production of the blood product, D1’s failure to have a documented protocol which included viral and bacterial testing, and D1’s failure to ensure the blood product had undergone such testing before leaving the laboratory.  The only mention of a safe system was D1’s failure to require D3 to have satisfied herself that such testing was carried out prior to the infusion.  Any evidence falling outside these particulars are irrelevant and inadmissible.  The safe system pleaded does not relate to a safe system in the Asia Pacific Stem Cell Science Limited (APSC) laboratory.  The safe system is only restricted to measures for the detection of bacteria.

8.  Counsel for D2’s submission was along the same vein.  The only mention of a safe system against D2 was his failure to carry out viral and bacterial testing before the blood product left the laboratory.

9.  Counsel for D2 further submitted that any evidence in relation to the management of the laboratory, the re‑agents used, the way the laboratory was used for the handling of the CIK products and the cord blood, and so on, have no relevance to the particulars of the breach alleged against D2 and therefore inadmissible.  Further, the prejudicial effect of the evidence outweighs the probative value.

10.  Counsel for D3 also opposed to evidence in relation to a safe system based on the particulars pleaded against D3, submitting that there was nothing about any safe system.  D3’s alleged breach of duty was her failure to ensure a properly qualified person was responsible for the preparation and production of the blood product; her failure to ensure viral and bacterial testing was done prior to the infusion and her failure to ensure the deceased was informed of the risks involved.

11.  Counsel for the prosecution submitted that the interpretation by counsel for D1 and D2 of the particulars pleaded are unduly restrictive.  Evidence of a safe system is relevant.  As for D3, though safe system is not pleaded, the failure to ensure viral and bacterial testing prior to infusion cannot be said to be irrelevant in relation to D3.

12.  In respect of D1 and D2, I am of the view that in interpreting the particular breach against each defendant, (both being para (ii)(b)): Failing to devise, institute, enforce and maintain a properly documented protocol for the preparation in the laboratory of the said blood product which included viral and bacterial testing, is not to be done so restrictively as submitted by counsel for D1 and D2.  Although the words “safe system” did not appear under this particular, and only under para (ii)(d) against D1 (failure to require D3 to have satisfied herself that viral and bacterial testing had been carried out prior to infusion), and under para (ii)(d) against D2 (failing to ensure viral and bacterial testing was carried out and documented before the blood product left the laboratory, I rule that evidence intended to be adduced by the prosecution in relation to the set‑up of APSC, the procedure adopted, the inventory and so on are all admissible against D2. 

13.  With respect, I disagree with counsel for D2 that the prejudicial effect of the evidence outweighs the probative value.

14.  I also rule that the evidence is admissible against D1 (subject to any evidence that falls foul of the hearsay rule).

15.  As for D3, in view of the particulars pleaded and that the position of D3 is very different from that of D1 or D2, it is my present view that most of the evidence is not relevant to the prosecution case against D3.  However, I rule that evidence concerning her failure to ensure viral and bacterial testing prior to infusion is admissible (subject to such evidence not being hearsay).

16.  I will re‑visit this issue against D1 and D3 at the end of the trial and will consider how to direct the jury on this.

Evidence of staff of laboratory

17.  Evidence to be adduced by staff of the laboratory touching about CIK is being objected to, mainly on the basis of irrelevance and that certain witnesses are not permitted to give opinion evidence as they are not called as such.

18.  I agree with the prosecution that they can, in their position as persons actually employed by the company to carry out work in the laboratory, to express their views why they did not or would not take part in the CIK, which shows their knowledge and state of mind.

Post infusion treatment

19.  As for evidence of post infusion treatment, having regard to my earlier ruling that the prosecution could not amend the indictment to include post infusion treatment, I rule that evidence of what D3 had given to the other surviving clients/patients (including Wong Ching Bor) are admissible to show knowledge and/or foresight of the risks involved.  I would also allow expert evidence of what a doctor in the position of D3 should have recognised and foreseen when dealing with something like a CIK process.

20.  However, I think it will go too far to allow PW78 to give opinion evidence in relation to D3’s management of all the victims post‑infusion.

Re expert opinion

21.  I appreciate counsel’s submission that a witness is not allowed to give evidence which are facts in issue and not part of the expounding study of various witnesses.  I am allowing the opinion evidence at the moment provided the basis of their opinion is supported by evidence to be adduced during the trial.  Should there be no such evidence, then the jury will be directed to disregard the opinion expressed.

Evidence of Ho Wai Yan

22.  As Ho Wai Yan will not be called as a witness, anything she said to any experts or other staff members will be hearsay and inadmissible.  I also reject the prosecution’s submission that her utterances amount to res gestae.  Any act performed by her as observed by the experts is admissible provided no verbal explanation is adduced as to the truth of the contents.

Exhibits seized with labels containing names of the customers, including that of the deceased.

23.  Evidence of various items seized by the police as directed by various experts are admissible.  As to the contents of the labels, however, I am of the view at the moment that such evidence is hearsay as to its truth.  I will re‑visit this issue at the end of the trial and will consider how I will direct the jury on this.

Statements by D2 and D3, not in the presence of other defendants

24.  Any verbal utterance, demonstration by D2 to the police and experts not in the presence of D1 and D3, and any witness statements given by D2 not in the presence of D1 and D3 are hearsay evidence against D1 and D3.

25.  Likewise, any witness statement given by D3 not in the presence of D1 and D2 amounts to hearsay evidence against D1 and D2.

26.  I will re‑consider this issue should there be any change to this position during the trial, and at the end of the trial should there be an application by the prosecution on the basis of the “building‑block” concept.