HKSAR v. KWAN HAU CHI, VANESSA

CACC 244/2021 [2023] HKCA 662

On appeal from [2021] HKCFI 2978

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 244 OF 2021

(ON APPEAL FROM HCCC NO 200 OF 2018)

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REASONS FOR JUDGMENT

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Introduction

1.  On 23 August 2021, the applicant was convicted after trial before D’Almada Remedios J (the judge)  and a jury of a single count of manslaughter, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance, Cap 212[1]. On 4 October 2021, the judge sentenced the applicant to 6 years’ imprisonment[2].

2.  By a notice dated 29 October 2021, the applicant applied for leave to appeal against conviction and sentence.

3.  At the conclusion of the leave hearing, I granted the applicant leave to appeal against conviction and sentence and said that I would hand down the reasons for my decision, including the grounds on which leave was granted, in due course.  This I now do.

The prosecution case

4.  The prosecution case alleged that the applicant failed to properly handle her patient under deep sedation for a liposuction procedure, which resulted in the deceased’s death.

5.  The charge on the indictment read that the applicant unlawfully killed Lee Kar-ying Josephine (the deceased)  by gross negligence in that-

“(i)  Being a registered doctor responsible for conducting the liposuction procedure to the said LEE Kar-ying, Josephine, owed her a duty of care;

(ii)  In breach of that duty of care, failed to take reasonable care for the safety of the said LEE Kar-ying, Josephine, by:-

(a)  Failing to ensure the presence of a properly qualified person to administer and monitor sedation when the said liposuction procedure was performed to the said LEE Kar-ying, Josephine;

(b)  Failing to ensure sufficient oxygen supply to the said LEE Kar-ying, Josephine, during sedation;

(c)  Failing to follow the paragraphs 3.3.1 to 3.3.3, 3.3.7, 3.4, 4, 5.1 to 5.3, 5.4.1.4 to 5.4.1.8, 7.3, 7.5, 10 and 11.2 of the ‘Guidelines on Procedural Sedation’ of the Hong Kong Academy of Medicine endorsed by the Hong Kong Academy of Medicine Council on 22 December 2009 when she was responsible for conducting the liposuction procedure for the said LEE Kar-ying, Josephine;

(d)  Failing to provide the said LEE Kar-ying, Josephine, with proper and sufficient monitoring after the liposuction procedure; and

(e)  Failing to provide adequate timely resuscitation to the said LEE Kar-ying, Josephine;

(iii)  Her aforesaid breach of duty amounted to gross negligence on her part; and

(iv)  Her aforesaid negligence was a substantial cause of the death of the said LEE Kar-ying, Josephine.”

6.  The main issues at trial were whether the prosecution had proved the applicant breached her duty of care as particularised in the charge and whether her failure amounted to gross negligence, which substantially caused the deceased’s death.  Other related issues concerned whether the deceased was under unconscious sedation (deep sedation)  or conscious sedation after the applicant had administered a combination of sedative drugs to the deceased so as to facilitate the liposuction procedure conducted by her.

The background and facts

7.  This was a tragic case which was complicated at trial because of the uncertainty and divergence of expert opinions as to the deceased’s cause of death. 

8.  The applicant and the deceased were good friends.  The applicant, a medical practitioner of many years standing, worked part-time at a beauty centre and frequently performed the liposuction procedure in the operation room that had been specifically set up for surgeries at the centre. 

9.  The deceased was a large woman for her height, whose weight was recorded as 113.5 kilogrammes.  The applicant performed the liposuction procedure on the deceased to remove fat from her abdomen on 30 April 2014 and it would appear without incident.  The procedure was repeated on 26 June 2014, but this time to remove fat from the deceased’s back.  The deceased was placed in a prone position on the operating table and connected to a Mindray machine to monitor her vital signs and oxygen saturation.  Inside the operation room were two CCTV cameras which visually recorded most of the room from different angles.  In addition to the visual recording, one of the cameras also made an audio recording.  During the trial, the footage of the two CCTV cameras were combined to synchronise the visual and audio recording of one camera with the visual recording of the other.  This became a contentious issue between the parties due to the late disclosure of the combined CCTV and the quality of the synchronisation of the two recordings.

10.  The CCTV comprised two cameras - Cameras 4 and 8, both were inside the operation room.  Camera 4 had audio and visual recording functions, whereas Camera 8 had only visual recording function.  The visual and audio were recorded on one main machine[3].  They captured most but not all of the operation room.  They did not capture the whole body of the deceased but only the back of her legs.  At the trial, recordings of Camera 4 and Camera 8 were played together on one screen.  There was also a transcript of the CCTV[4]. Part of the CCTV footage recorded by Camera 4 was muted upon agreement of the parties[5].

11.  A police officer (PW2)  put the footage of Camera 4 (partly muted)  and Camera 8 on a synchronized screen.  When played, the footages recorded by the two cameras ran at different speeds and the time difference/time lapse ranged from a few seconds to 10 seconds for a 5-minute footage[6]. PW2 cut up the CCTV footage recorded by Cameras 4 and 8 into 5-minute sessions, which resulted in a series of 5-minute footage.  Then, for each of those 5-minute CCTV footage, PW2 put the footage recorded by Cameras 4 and 8 together on the same screen.  For each of those 5-minute footage, the start time would be the same[7]. The resulting product was Exhibit P-55 (the Combined CCTV), which was played before the jury.

12.  The applicant was assisted by four female employees of the centre, two of them were employed as receptionists and the other two as beauticians.  There was an issue at trial that the assistants did not have proper medical training.

13.  The deceased was sedated by an infusion of propofol and a combination of other sedative drugs.  Propofol was also administered to the deceased at various times throughout the procedure, which commenced at 11:35 am and was completed at about 2:40 pm.  There was an issue as to the number of doses of propofol that were administered to the deceased, but it was suggested because seven syringes of propofol could be seen in the operation room from viewing the CCTV footages that that was the number administered to the deceased.  The first syringe was administered at 11:34 am and the last at about 2:09 pm.  It was submitted that a total of 14 ampoules, which amounted to 2,800 mg of propofol had been administered to the deceased.  This matter only emerged after trial had commenced and when the prosecution synchronised the two CCTV camera recordings.

14.  It was submitted that the deceased was unable to communicate or respond from about the beginning of the operation except for a short period between the 5^th and 6^th syringe of propofol, at about 1:48 pm, when she came out of her sedation and said “painful, painful, painful and don’t press my hand”.  Shortly after that, the deceased was infused with the 7^th syringe of propofol and was under sedation again.

15.  Whilst the deceased was attached to the Mindray machine during the procedure, it was submitted that the alarm was sounded at various times which indicated that there was a problem with the deceased’s vital signs, but was treated as nothing serious.  Even though there was an audio and visual recording of the procedure, there were no written notes monitoring or recording the deceased’s vital signs, nor was there a record of the drugs that were administered to her.

16.  At about 2.40 pm, the applicant sutured the deceased on completing the liposuction procedure and left the operation room at about 2:44 pm.  The deceased was still sedated and unconscious.  Before leaving, the applicant told the assistants to pass a key to the deceased as she had something to do but to tell the deceased to call her.  The deceased was detached from the Mindray machine and left prone on the operating table.

17.  At about 3:19 pm, one of the assistants noticed that the deceased was not snoring and was unresponsive to physical contact or verbal communication.  She also looked pale.  The applicant was contacted, and she returned to the operation room at 3:34 pm.  She administered oxygen and adrenalin to the deceased and tried to revive her.  She instructed that an emergency 999 call be made at about 3:35 pm.  She also telephoned another medical practitioner to seek assistance.  The police officer, who responded to the 999 call, saw the applicant doing compressions on the deceased’s back as he entered the operation room. The ambulance officers arrived at the centre at about 4:00 pm.  They removed the deceased from the operating table and put her in a supine position.  She had no pulse, but they still tried to resuscitate her. She was transported to the hospital at 4:12 pm and certified dead at 5:06 pm.

The expert evidence and issues

18.  An autopsy was conducted by a pathologist, Dr Chiao Wing Fu (PW10 at trial), two days after the deceased’s death on 28 June 2014.  He concluded that an examination of the deceased’s body revealed no injuries or any form of trauma that could have accounted for the cause of death; there was no infection, perforation or massive haemorrhage over the operated parts.  An examination of the vital organs showed no disease or potentially fatal pathologies to which the cause of death could have been attributed.  The toxicology analysis revealed the presence of an analgesic, local anaesthetic and sedatives, but the blood levels of the drugs could not have accounted for the cause of death.  He also discounted that the cause of death was associated with surgical intervention.  He labelled the cause of death as “unascertained” because the autopsy did not reveal an abnormality or a fatal pathology that could have satisfactorily accounted for the cause.  However, he suggested expertise from a qualified plastic surgeon and a qualified anaesthetist should be sought in order to exclude the possibility of any medical mishap.

19.  The prosecution obtained two draft reports, dated 22 and 28 May 2015, and a final report, signed and dated 3 July 2015, from Dr Lester Ah Critchley, a professor and specialist anaesthetist.  His final report was not adduced into evidence at trial but was considered by another expert who testified.  He questioned the procedures that were followed by the applicant in performing the liposuction procedure and the lack of documentation. In his first draft, he said that it was his “guess” that the cause of death was a combination of factors that, in isolation, were innocent but together led to significant cardiorespiratory depression followed by cardiorespiratory arrest that was not properly treated.  In his second draft, he questioned the procedures that were followed and commented that the level of care was below standard.  He said the facilities in the clinic performing liposuction under heavy sedation and the level of staffing were reasonable.  He was critical of leaving the unconscious deceased in the care of an inexperienced assistant and the lack of documentation of the procedure.  He said that the deceased appeared to have been arrested following the procedure because she was over sedated and of other contributing factors.  In his final and signed report, he said that the cause of death was cardiorespiratory depression caused by excessive intravenous sedation, which was possibly complicated by a minor degree of gastric aspiration.  However, he said that the facilities in the clinic for performing liposuction under heavy sedation were reasonable.  However, he was also critical of carrying out the procedure without a qualified medical assistant and leaving an unconscious patient in the care of untrained personnel.

20.  As already noted, Dr Critchley’s report was not produced at trial, and he was not called as an expert witness.  The prosecution also obtained expert opinions from two other doctors and one referred to Dr Critchley’s report.  This became an issue at trial and whether the defence could cross-examine the doctor’s consideration of Dr Critchley’s report and his findings.

21.  Dr Chan Yu Wai (PW11 at trial), a specialist plastic and reconstructive surgeon, produced a report dated 20 March 2018.  He was critical of the lack of formal procedure and a detailed operative record. However, he noted that from the post-mortem report and the toxicology examination, the apparent cause of death was “not clear”.  He said that without certain crucial information, “one cannot judge whether the surgical procedure has been properly performed”.  He was generally critical of the casual approach to the surgical procedure.

22.  Dr Chan explained that before a surgery a medical examination and an adequate explanation of the procedure and risk should be done[8]. He also explained that it would be necessary if the patient did not have communication with the surgeon, for a trained person to assist in monitoring the patient[9]. He was of the view that because of the significant amount of aspirate, the surgery could not have been done under conscious sedation[10].  He said that if a patient was lying prone for the surgery, he would have immediately turned the patient over after the surgery[11].

23.  Dr Phoebe-Anne Mainland (PW12 at trial), a specialist anaesthesiologist, was instructed to provide an expert report on 15 May 2015.  She produced a first draft report dated 11 January 2016.  She was asked to address matters raised by advising counsel of the Department of Justice on 12 February 2016, which resulted in a second draft report dated 15 June February 2016.  There were further communications with Dr Mainland about her report and she was provided with additional documents for her consideration in August and October 2016.  She was given a copy of a recent judgment of R v Rudling [2016] EWCA Crim 741 and asked to address whether the medical practitioner, being in breach of an existing duty of care to her patient which was reasonably foreseeable, had given rise to a serious and obvious risk of death, and caused the death of the deceased.  She produced a third draft report dated 17 January 2017 in which she stated that the cause of death could not be established with certainty.  Nevertheless, she was critical of the surgical procedure and the way the applicant conducted it.  In her opinion, it was likely that the deceased would not have died if the sedative medications had not been administered.  She said a reasonable doctor would have arranged for a trained person to perform sedation on a patient such as the deceased, who was undergoing liposuction in a prone position, or would not have prescribed propofol for such a patient.  In an email dated 13 July 2017, Dr Mainland was provided with CCTV footage of the operation room, which included the audio recording that had been “lately found”. 

24.  Sometime later, in July 2021, there were a series of emails from Dr Mainland to the prosecution, in which she made reference to a report and supplementary report from Dr David Burd, who had been instructed by the defence.  In an email dated 23 July 2021, she referred to Dr Burd’s supplementary report and suggested she should amend her report.  On 23 July 2021, Dr Mainland produced her final draft report.  There were email communications between prosecuting counsel and Dr Mainland, on 25 July and 1 August 2021,  in which Dr Mainland stated that she observed seven syringes of propofol on viewing the CCTV footage and that there was not a delay between syringes as she initially thought.

25.  Dr Mainland explained various levels of sedation as defined under the Guidelines on Procedural Sedation of the Hong Kong Academy of Medicine (the Guidelines)[12] and the breaches that were particularized in paragraph (ii)  of the charge.  She emphasized that conscious sedation and deep sedation were not a step or cut-off, but a continuum[13].  The deceased could go between conscious and deep sedation, especially when there was an interruption of drug infusion, when the level of sedation would be lightened[14].  She explained that according to the Guidelines while a doctor could look after and provide for sedation on a patient, there must be rational verbal intercommunication during sedation and monitoring of those verbal commands must be continuously possible during the procedure.  If continuous verbal communication was lost, the doctor should devote attention to monitoring and treating the patient until recovery or until such time as another appropriately trained medical practitioner became available[15].  If deep sedation was intended, an anaesthesiologist or an appropriately trained medical practitioner must be present to monitor the patient throughout the procedure[16].  She was of the view that when propofol was administrated, there should have been be a trained person monitoring the deceased’s vital signs, and oxygen as required[17].

26.  When Dr Chiao testified, he was asked if he could tell if a lack of oxygen caused the death, he explained that it would take hours to show a hypoxic change[18]. Dr Mainland said on this issue that she was not suggesting that the deceased was hypoxic to the catastrophic level for three hours.  There was a difference between a lack of oxygen and low oxygen saturation.  In her opinion, the deceased’s saturation level was below what it should have been and there was a compromise of oxygen to the deceased’s body[19].

27.  The prosecution made no allegation against the applicant on her skill of performing the surgery, on the facility of the operation room or the sterility of surgical instruments.  There was no allegation of drug overdose[20]. The combination of drugs given to the deceased was not toxic, but the effect of the drugs in combination caused depression in the deceased’s breathing and led to low oxygen levels[21]. The allegations against the applicant were particularized in paragraph (ii)  of the charge[22]. They were all about the applicant's failure to handle a patient in deep sedation.  In Dr Mainland’s opinion, had the applicant followed the Guidelines in handling a patient in deep sedation, the deceased would not have died[23].  However, the vexed issue in this case was the pathologist’s finding that the deceased’s cause of death was “unascertained” and that the autopsy did not reveal any abnormality or a fatal pathology that could have satisfactorily accounted for the cause of death.

The defence case

28.  The applicant did not testify and did not call any witnesses.  It was the defence case that the deceased was under conscious sedation [24], and, not deep sedation or general anaesthesia[25] and that the Guidelines were neither mandatory nor applicable to the applicant[26].  The defence's position was that the assistants were not completely untrained[27].  It was submitted that the applicant made an assessment of the deceased after the liposuction procedure[28], and there was a resuscitation attempt on the deceased[29].  The CCTV footage only showed the legs of the deceased on the operating table and there was a period when the applicant was out of view, and it was contended that the applicant was assessing the deceased at that time after the liposuction procedure[30].

29.  In summary, the defence case was that there was nothing which the applicant did or failed to do which substantially caused the deceased’s death[31].

30.  A matter of significance concerned when the trial took place.  The alleged offence was committed on 26 June 2014.  It was some 7 years later that the applicant stood trial on 14 July 2021.  This was of particular relevance in assessing the case according to the professional standards and requirements at the time of the offence.

D.  Grounds of appeal

31.  By the perfected grounds of appeal dated 25 April 2022, the applicant advanced ten grounds of appeal against conviction and two grounds against sentence.

The grounds against conviction: Grounds 1 to 10.

Ground 1: The judge erred in allowing the production of the combined CCTV footages in circumstances that constituted material irregularity at trial.

32.  Mr Martin Hui, SC, with him Ms Sharon Chan, for the applicant, submitted that the judge erred in ruling Exhibit P55 (Camera 4 and Camera 8 combined)  (the Combined CCTV)  admissible in the following circumstances:

(i)  The Combined CCTV was only produced on the third day of the trial, and the judge asked to be addressed on substantive arguments as to its admissibility immediately only after a luncheon adjournment.  The defence was deprived of a fair opportunity to consider whether there had been any relevant issues, technical or otherwise, as to the question of admissibility in the combining of the CCTV footage.

(ii)  The artificial editing process of aligning the different footage from the respective camera angles into five minute segments was at variance with how the exhibit was originally provided to the prosecution's key expert witness, Dr Mainland, for her consideration in compiling her expert report (Exhibit P100).

(iii)  The time lag between Camera 4 and Camera 8 in the Combined CCTV (where both camera screens were running at different speeds even after attempting to align every five minutes)  remained unexplained.

(iv)  The unexplained time lag between the two screens of the Combined CCTV posed a real risk of erroneous interpretations of the alleged actions or inactions on the part of the applicant, particularly when Dr Mainland was relying on what was purportedly heard from Camera 4 to interpret or infer what could or could not be seen in Camera 8.

Ground 2: The judge failed to adequately and sufficiently direct the jury on (i)  the limitations of the CCTV footages; and (ii)  the proper approach to the evidence where a large part of the prosecution's case on the applicant’s alleged actions/inactions was derived from interpretations made and inferences drawn by the key expert witness Dr Mainland from the incomplete CCTV footages.

33.  It was submitted on the applicant’s behalf that in the absence of a strong and clear warning to the jury about the limitations of the Combined CCTV and appropriate directions to the jury as to how they should approach the question of drawing relevant and permissible inferences in the absence of direct evidence, the jury may have mistakenly accepted Dr Mainland’s opinions and interpretations without proper evidential basis.  This was evident by the following:

(i)  Contrary to the judge’s summing-up that, “ ... most, but not all, of the remainder of the operation room” was captured by the CCTV[32], there was no evidence as to the location of Camera 4 and Camera 8 in the operation room and which parts of the operation room they respectively captured.

(ii)  Where only a small portion of the back of the deceased’s legs was captured by Camera 8 of the Combined CCTV[33], the judge erred in referring to actions done or not done to the “head of the patient”[34], which was completely out of view of the Combined CCTV and unsupported by any evidence.

(iii)  Dr Mainland’s opinion that the deceased was suffering from low oxygen was  pure speculation based solely on her own interpretation of the audible and visual alarms she discerned from the Combined CCTV.  As Dr Mainland made clear in her evidence-in­chief, it was only her "speculation" that oxygen intervention was “probably” required.

(iv)  The judge erred in her summing-up by referring to an incomplete CCTV transcript and Dr Mainland’s interpretation thereof[35].  It was inadequate to merely instruct the jury to consider the context of the words and what they meant[36] without directing them on how they should approach the question of drawing proper inferences.

(v)  The judge erred in placing excessive weight on the words “sleeping”, and “anesthesia” in the CCTV transcript, which may have different meanings to expert anesthetists[37].

Ground 3: There was a material irregularity occasioned by the drastic and last­ minute departure in Dr Mainland’s evidence from the assumptions she made in her expert report (Exhibit P100)  which, coupled with the lack of timely and full disclosure to the defence of material information pertaining to such departure despite the defence's request, resulted in unfairness and prejudice to the defence at trial.

34.  It was submitted that the defence was taken by surprise with Dr Mainland’s revelation on the first day of her evidence-in-chief of undisclosed enquiries she had made with the police, drastically altering her assumptions in compiling her report, Exhibit Pl00.  Furthermore, there was no explanation by Dr Mainland as to why she could not identify seven syringes of propofol being administered to the deceased during the operation at the time when Exhibit P100 was prepared by viewing the CCTV footage of Camera 4 and Camera 8 separately.

35.  It was further alleged that there was a material irregularity in the conduct of the trial because of the prosecution’s failure to inform the defence and the court of Dr Mainland’s amendments to Exhibit P100 prior to her evidence.

Ground 4: There was a material irregularity in the conduct of the trial when the judge refused to allow defence counsel to cross-examine on (i)  the contents of Dr Lester Ah Critchley’s expert report notwithstanding that the report had been considered by the prosecution expert witnesses themselves when forming their opinions; and (ii)  the original unmuted CCTV footages adduced at trial as Exhibit P55.  The applicant was thus deprived of the opportunity to present her defence case fully, especially on the crucial issue as to the deceased's level of sedation, thereby undermining her right to fair trial.

(i)  Dr Critchley

36.  It was noted by Mr Hui that Dr Critchley’s expert report was expressly considered by all prosecution expert witnesses tendered at trial.  He contended that there was a material irregularity in the judge’s refusal to allow any reference to Dr Critchley during the trial in the absence of any argument and without due consideration of the purpose of the defence's proposed line of cross-examination.  He argued that this deprived the applicant of a fair opportunity to explore by way of cross-examination of the prosecution's expert witnesses on relevant matters pertaining to key issues, including, in particular, the following opinions  expressed  by Dr Critchley:

(i)  There were no published guidelines as of June 2014 for surgeons governing the use of sedation in  ambulatory surgical clinics, including cosmetic (aesthetic)  and plastic surgery.

(ii)  The provision of sedation met the standards of clinical care generally accepted amongst private sector doctors.

(iii)  No direct harm was occasioned to the deceased from the procedure performed by the applicant.

(iv)  The standard and level of patient-monitoring by way of the Mindray monitor was reasonable and appropriate.

(ii)  Unmuted CCTV

37.  Mr Hui submitted that according to Dr Mainland, one of the most important factors in determining the depth of sedation was to consider the deceased's response, which included any verbalizations of the deceased during the liposuction operation.  It therefore followed that whether the deceased had spoken during the liposuction operation was highly relevant to the defence case.

38.  Ms Cheng Hoi-ki (PW4), one of the applicant’s assistants,  in cross-examination testified that the deceased was speaking during the operation and that the deceased had slurred speech from time to time. Mr Hui noted that the defence requested to cross­examine PW4 on the unmuted CCTV, but the judge wrongly refused on an incorrect basis, namely that only the muted version of the CCTV was before the jury.  The unmuted CCTV had been adduced into evidence and produced in the Admitted Facts as Exhibit P55[38].  He contended that the applicant had been deprived of a fair opportunity to establish further instances of the deceased speaking during the operation and was, therefore, unable to present the defence case fully.

Ground 5: The judge failed to adequately sum up and direct the jury in a fair and balanced manner

39.  The judge’s summing-up of the evidence was unfair, unbalanced, and neglected evidence which was in favour of the defence case for the following reasons:

(i)  In approaching the issue of whether a pre-operation assessment had been done on the deceased, Ms Chau Siu-man (PW3)  gave evidence that it was the general practice of the centre that a pre-operation assessment was done with every patient before a procedure[39].  However, the judge discounted PW3’s evidence by instructing the jury that they may find there is “no explanation of procedure and risk”[40], without reminding the jury that it was open to them to infer from PW3’s evidence that the general practice and procedures of the centre were followed; and

(ii)  In approaching the issue whether the assistants present at the liposuction operation were adequately trained, Dr Mainland herself accepted in her evidence-in-chief that “there is probably no way of saying who is qualified” since there were no certification requirements and training depended on hands-on tutoring.  It was the further evidence of PW3 under cross-examination that she received various training including certification in aesthetics, training in operation room management for liposuction procedures, resuscitation, and training in assisting in surgeries. Notwithstanding the above, the judge selectively and unfairly summed  up to the jury in the following manner, which was tantamount to instructing the jury to disregard the above evidence in the defence's favour and to find against the applicant on this issue: “Was Chow [sic] qualified even, to train Yen?  Was Chow [sic] herself trained? You have heard that she took a course in aesthetics.  That means beauty.  But was she trained in medical operating sedation?  I do not think, members of the jury, you have evidence of that at all”[41].

Ground 6: The judge failed to adequately direct the jury on the issue of “causation” in the circumstances of this case where the prosecution case was expressly based on Dr Mainland’s opinion that it was “the additive effect, or combination of several failures that together contributed to the situation where death occurred”.

40.  Mr Hui argued that the judge’s direction to the jury that “one, some or all” of the particulars of the breach of the duty of care set out in the indictment[42] were capable of establishing causation to the required standard was inconsistent with the prosecution’s case which was based upon Dr Mainland’s opinion that it was “the additive effect, or combination of several failures that together contributed to the situation where death occurred” and that “there was a collection of actions and inactions that created the situation where death was a high possibility, probability”.

41.  It was also argued that the judge further erred in the following matters:

(i)  She referred to the evidence of Dr Chiao Wing-fu (PW10)  concerning his suggestion to seek the expertise of a qualified surgeon and qualified anaesthetist to exclude the possibility of a medical mishap[43] without reminding the jury of the context and meaning of the term “medical mishap” used by him.  PW10 accepted in his evidence that the term was a reference to an accidental situation during a medical procedure and included scenarios where proper treatment was given to a patient resulting in some very rare and severe consequences.

(ii)  She incorrectly directed the jury that the evidence of the “cause of death” (an area requiring the expertise of a pathologist)  also came from Dr Mainland[44], creating a misconception that it was within Dr Mainland’s expertise to comment on the “cause of death”.

(iii)  She referred to Dr Mainland’s evidence that the deceased suffered from low oxygen as a result of, inter alia, being positioned faced down[45] without reminding the jury that the pathologist, Dr Chiao Wing-fu (PW10), could not find any signs of postural asphyxia.

(iv)  She referred to Dr Mainland’s evidence[46] that the cause of the deceased's death could be arrived at by a process of elimination.

(v)  She unfairly and erroneously directed the jury that  “you may find that Dr Chow [sic] was not excluding death by hypoxia”[47] when PW10’s uncontradicted evidence was that the cause of death was labelled as “unascertained” and that he could not find any signs of hypoxia.

(vi)  She failed to remind the jury that Dr Mainland’s evidence-in-chief on the issue of causation was that it was a collection of actions/inactions which created a situation where death was a “high possibility/probability” thus casting doubt as to whether the prosecution was able to establish causation beyond a reasonable doubt.

(vii)  She referred to Dr Mainland’s evidence that the deceased was not hypoxic to a catastrophic level[48] without adequately directing the jury on how to approach such evidence and whether the evidence was capable of establishing causation to the required standard.

(viii)  She failed to remind the jury that it was Dr Mainland’s “speculation” that the deceased was suffering from low oxygen levels, an opinion arrived at by Dr Mainland based solely on her interpretation of the visual and audible alarms of the Mindray monitor.

(ix)  She failed to remind the jury of the evidence of PW10 that, aside from Pethidine, all drugs were already naturally metabolized by the deceased prior to her death.

42.  It was submitted that the above matters resulted in prejudice to the applicant, particularly in the context of the present case where the “cause of death” was found to be unascertained[49] and uncertain[50].

Ground 7: The judge’s direction on the issue of “foreseeability”, given after her direction on “causation”, was liable to confuse the jury, which prejudice was compounded by the erroneous direction to the jury that they were entitled to consider multiple breaches of duty of care together in approaching the issue of foreseeability.

43.  The judge directed the jury to consider the issue of foreseeability after the issue of causation, and it was contended by Mr Hui that this likely caused confusion in the circumstances of the present case where the prosecution relied on a “combination of several failures” to prove causation.  He submitted it would have been more logical in the context of this case to direct the jury to consider the issue of foreseeability first before approaching the question of causation.  This sequence would have been in line with the specimen direction as suggested by the Crown Court Compendium of England and Wales and the case law as developed in R v Rudling [2016] EWCA Crim 741.

44.  Mr Hui said that the applicant was further prejudiced by the erroneous direction to the jury that they were entitled to consider (i)  multiple breaches of duty of care “together”[51] and (ii)  Dr Mainland’s opinion of the “combination of several failures”[52] in determining whether a reasonably competent doctor would have foreseen a serious and obvious risk of death when the issue of foreseeability is to be determined at the time of the breach.  He contended that this error was compounded by a lack of focus in the prosecution's  case on (i)  when the condition of the deceased reached the threshold of a serious and obvious risk of death; (ii)  what the applicant should have done then; and (iii)  the prospect of the deceased's survival at that point: R v Broughton [2021] I WLR 543.

Ground 8: The judge erred in instructing the jury to find the prosecution case proved if they find they could rely on Dr Mainland’s opinion, giving rise to the risk of the expert’s opinion supplanting the jury’s evaluation of the evidence.

45.  Having acknowledged that the prosecution “rely heavily on Dr Mainland’s evidence particularly”[53] and in the circumstances of this case where Dr Mainland’s opinion evidence was peppered with words such as “competent”, “reasonable doctor”, and “reckless” in describing the conduct of the applicant, Mr Hui advocated that it was crucial for the judge to give a strong warning to the jury to guard against the risk of them foregoing their independent function of a proper evaluation of the evidence and having their fact finding task usurped or supplanted by the expert's opinions.  He was particularly critical of the judge’s direction to the jury that “If you find that you can rely on Dr Mainland’s opinion, you may find the prosecution has proved its case”[54], which he submitted, was inadequate and erroneous.  He said it essentially invited the jury to convict if they were satisfied with Dr Mainland’s evidence and created the risk that the jury’s independent evaluation of the evidence was supplanted by the expert’s opinion to the applicant's prejudice.

Ground 9: The judge failed to give a Kevin Brown direction and failed to sufficiently instruct the jury as to how they should approach their tasks on route to verdict where there were multiple particulars of breach of duty of care alleged, each capable of amounting to gross negligence.  In the context of the present case, such a direction (requested, but not entertained)  would be required, contrary to HKSAR v Mak Wan Ling [2022] HKCA 397.

46.  Mr Hui argued that the standard concluding directions in relation to reaching a verdict acceptable to be received by the court[55] were inadequate in the circumstances of the present case for the following reasons.

47.  First, the indictment alleged five particulars of breach of duty of care which covered the alleged actions/inactions of the applicant before, during, and after the liposuction operation, where it was purported that each was capable of amounting to gross negligence.

48.  Secondly, the judge’s directions to the jury on the ingredient of breach of duty of care were merely to consider whether they find “one, some or all” of the particulars of breach of duty of care “proved”[56] without any directions on the degree of unanimity required as to each of the alleged particulars.

49.  Thirdly, there was a real danger that the jury, in the absence of a Kevin Brown direction requested by the defence, was split on which particular they considered in approaching the issues of causation, foreseeability, and grossness.

Ground 10: In all the circumstances, the conviction is unsafe and unsatisfactory.

50.  It was finally submitted that the above grounds, either individually or cumulatively, rendered the applicant's conviction unsafe and unsatisfactory.

Discussion

51.  The judge correctly directed the jury on the ingredients of the offence of manslaughter by reason of gross negligence, which she supplemented by providing them with a written handout.  She told them that before they could convict the applicant of the offence, they had to be satisfied to the requisite standard that: (1)  the applicant owed an existing duty of care to the deceased; (2)  the applicant was in breach of that duty of care; (3)  the breach of duty of care substantially caused the death of the deceased; (4)  that the breach of duty of care constituted gross negligence, in that the circumstances were such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death; (5)  the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence that warranted a criminal conviction.

52.  A key ingredient of the offence was the second concerning the breach of the duty of care.  If proven, it then had to be established that the breach substantially caused the death of the accused (the third ingredient), that the breach constituted gross negligence (the fourth ingredient)  and that the circumstances of the breach were truly exceptionally bad and reprehensible (the fifth ingredient).

53.  The prosecution particularised five alleged breaches of duty by the applicant, which briefly stated were (a)  failing to have present a qualified person to administer and monitor sedation; (b)  failing to have sufficient oxygen supply during sedation; (c)  failing to follow various guidelines of the Guidelines on Procedural Sedation; (d)  failing to provide proper and sufficient monitoring after the liposuction procedure; and (e)  failing to provide adequate, timely resuscitation to the deceased.

54.  A most unusual feature, in this case, was that the medical experts were uncertain about the deceased’s actual cause of death.  The pathologist, Dr Chiao, said the cause of death was “unascertained”.  Dr Critchley, a specialist anaesthetist, said that his “guess” was that the cause of death was a combination of factors that, in isolation, were innocent.  Dr Chan, a plastic surgeon, said the apparent cause of death was “not clear”.  Dr Mainland, a specialist anaesthetist, said the cause of death could not be established with “certainty”.  At the trial, Dr Chan and Dr Mainland gave evidence for the prosecution and varying opinions on the deceased’s cause of death or what had contributed to her death.

55.  The defence obtained the expert opinion of Dr Burd, a retired plastic surgeon and former professor of the Chinese University of Hong Kong, which it disclosed to the prosecution.  He was critical of the prosecution’s expert reports.  He noted that the deceased’s cause of death was unknown and that his counterparts were making suggestions on the basis of possibilities, not probabilities.  His report was submitted to Dr Chan and Dr Mainland, who responded to his criticisms, some of which they acknowledged, resulting in them making some amendments to their opinions.  In her second draft report, Dr Mainland addressed extensively Dr Burd’s criticisms of her first draft report[57]. 

56.  There was a controversial debate between the prosecution experts and the defence expert regarding the cause of death and the opinions they had expressed.  This was not fully presented to the jury as references to the opinions of Dr Critchley and Dr Burd were not permitted because neither had testified at trial.  Dr Chan in his second report referred to and discussed Dr Burd’s report, and Dr Mainland commented on the reports of Dr Critchley and Dr Burd.  The judge directed the jury to ignore any the reference to Dr Critchley and Dr Burd[58]. The prosecution objected to Dr Burd’s report because he was mainly providing a critique of the prosecution experts’ reports.  The judge agreed and ruled that numerous passages of his report were inadmissible.  

57.  A key factor, in this case, was that the nature of the deceased’s death was unable to be ascertained.  It was arguable that the medical experts, Dr Chan and Dr Mainland, within the confines of their expert knowledge, proposed a cause of death of which they were uncertain. 

58.  The prosecution case relied heavily upon the expert opinion of Dr Mainland on the issue of the deceased’s cause of death.  When giving evidence for the prosecution, she was extensively examined on her report.  In section 5 of her report, she stated her opinion on the cause of death, expressing her view on various matters.  In section 5.4, she addressed whether the applicant’s conduct gave rise to a serious and obvious risk of death and caused the deceased’s death.  She listed the various matters that formed the particulars under the second ingredient and expressed the view that the applicant’s conduct gave rise to serious and obvious risk of death and caused the death of the deceased.  In her testimony, she said she was incorrect to say that the applicant’s conduct caused the deceased’s death, but rather her conduct contributed to the risk of the deceased’s death[59].  She was then asked[60]:

“Q. And, I think, am I correct to say all the things that you have mentioned in your report and in your evidence, in fact, acted collectively and not any -- and not singularly insofar as towards the death of Ms Lee is concerned, is that correct?

  A.  Yes, it was the additive effect or the combination of several failures that together contributed to the situation where death occurred.  I can’t say if one thing was done that would have stopped it, her dying, or it was more that there was a collection of actions and inactions that created the situation where death was a high possibility, probability.”

59.  Dr Mainland’s answer revealed that she based her opinion on the cumulative effect of all the matters that she had identified as constituting serious failings on the part of the applicant, which in her view, contributed to the risk of death of the deceased.

60.  It was arguable that that was not how the case was summed up to the jury and therefore resulted in a material misdirection on a key element of the offence.

61.  Before the judge gave her summing-up, counsel discussed with her matters that they thought should be addressed in her remarks to the jury.  Defence counsel requested that a Kevin Brown direction should be given in relation to the five particulars in the second ingredient.  He made the point that it was alleged each particular represented a breach of duty by the applicant, which the prosecution alleged substantially caused the deceased’s death.  Prosecuting counsel objected, and explained that the particulars were overt acts of the ingredient and it did not matter whether there was a majority agreement with one particular.  She submitted that the members of the jury did not have to all agree on any one particular as long as each found that there was a breach of duty of one of the particulars.  The judge accepted this submission and gave a direction in those terms.[61]

62.  As for the second ingredient, the judge instructed the jury[62]:

“If you are sure that the defendant failed to do what in the circumstances she ought to have done or not have done, then that is, in some or all or one of the particular breaches, because remember, you do not have to find every one of the particulars of breach mentioned proved so long as you do find one or some of them proved. If you are sure that the defendant was in breach of one, some or all of the particulars of breach mentioned in the indictment, then you have to go on to consider the next ingredient, which is the third ingredient did the breach of the duty of care substantially cause the death of Lee.”

63.  The judge reinforced this instruction on several occasions later in her summing-up:

“Members of the jury, as to the failures or breaches, as particularised in para (ii)  of the indictment, if you are not sure that the defendant was in breach in any of the particulars that we have mentioned in the indictment, that is the end of the matter. You must acquit or find the defendant not guilty.

Remember, members of the jury however, you need not find that the defendant was in breach of all of the particulars. It can be one, some or all. If you are sure she was in breach in one, some or all, then you will have to go on to consider the third ingredient which is what is particularised however, here in the charge, in the indictment as particular 4, ‘Her aforesaid negligence was a substantial cause of the death of the said Lee Kay-yin’. …”[63]

…

“So you will consider -- so you have to consider each of the particulars of breach you find proved, either by itself or together. So if you found two together, say you found particular 2(b)  and (d)  proved, then both of them together are breaches. Would that reasonably competent foresee that the breaches of (b)  and (d)  together gave rise to a serious and obvious risk of death?”[64]

64.  The question arises whether this direction was contrary to the prosecution case submitted by Dr Mainland’s expert evidence.  There is also the question of whether each particular breach could have substantially caused the deceased’s death and whether it satisfied the further ingredients of the offence of constituting gross negligence and being truly exceptionally bad and reprehensible.  As pointed out in the respondent’s submission, the prosecution made no allegation against the applicant on her skill of performing the surgery, on the facility of the operation room or the sterility of the surgical instruments.  There was no allegation of drug overdose, and the combination of drugs given to the deceased were not toxic, although it was said that the effect of the drugs in combination caused depression of the deceased’s breathing and led to low oxygen level.  The judge confirmed that this was the case in her summing-up[65]: 

“So I want to remind you again, and Mr Leung has reminded you of this and I have reminded you throughout the trial, there is no allegation of the defendant’s surgical skills, no allegation of poor facilities, no allegations about the sterility of the instruments. There is no allegation of any drug overdose. And no allegation about her, the previous liposuction conducted on 30 April 2014.”

65.  It was arguable that some of these matters on which no allegation was made seemed to contradict some of Dr Mainland’s findings or views, such as no allegation of poor facilities or drug overdose.  It was said that allegations against the applicant, as particularised under the second ingredient, were all about her failure to handle a patient in deep sedation.

66.  In her final and signed report, Dr Mainland listed that the documents she considered were Dr Critchley’s statement[66], Dr Chan’s report dated 15 July 2015[67], the comment of the pathologist about the expert reports of Dr Chan and Dr Critchley[68], the comment of Dr Chan and Dr Critchley on each other’s reports[69] and the reports of Dr Burd dated 29 June 2020 and 23 April 2021[70].

67.  In section 6 of her report, Summary of Conclusions, Dr Mainland stated[71]:

“6.1 The cause of death of Ms LEE cannot be established with certainty. However exclusion of causes such as myocardial infarction (heart attack), significant aspiration (inhalation of stomach contents into the lungs), stroke, massive pulmonary embolism or other catastrophic medical events, supports cause of death to be the result of over-sedation, respiratory depression, hypoxia and cardiac arrest.”

68.  Having excluded other causes of death, Dr Mainland said that this supported her view that the cause of death to be “the result of over-sedation, respiratory depression, hypoxia and cardiac arrest.” It seems that she was suggesting that death was caused by the cumulative effect of these conditions even though she stated that this could not be established “with certainty”.  She went on to state[72]:

“6.2 It is my opinion that it is likely Ms LEE would not have died if the sedative medications had not been administered.”

69.  In this general statement, Dr Mainland was expressing her opinion in the negative in the sense that, in her view, the deceased would not have died if the sedative drugs had not been administered to the deceased without attributing her cause of death to the sedative drugs.  As accepted by Dr Mainland, the pathologist had found that the blood levels of the drugs in the deceased’s body could not have accounted for the cause of death.

70.  Dr Mainland then expressed the view that the applicant’s actions contributed to a significant extent to the death of the deceased.  She continued[73]:

“6.3 The actions of Dr KWAN contributed to a significant extent to the death of Ms LEE. As the supervising doctor, she was responsible for drugs administered or not, used for sedation, including oxygen, the monitoring of Ms LEE during and after the procedure and management of complications resulting from the procedure, including complications of medications administered.

6.4 Dr KWAN did not ensure supplementary oxygen was administered during sedation, she arranged administration of propofol by bolus doses and infusion to Ms LEE without ensuring a trained person was responsible for monitoring the patient and her resuscitation efforts once an emergency had been identified were inadequate. In my opinion, these actions and inactions of Dr KWAN contributed directly to the death of Ms LEE.

6.5 It is my opinion that a reasonable doctor would have arranged for an anaesthesiologist or other trained person to perform sedation for and monitor a deep level of sedation was required. Alternatively a reasonable doctor would have not prescribed propofol for such a patient and would have administered an amount of sedation that ensured that Ms LEE maintained verbal communication with the doctor.

6.6 The conduct of Dr KWAN was reckless with regard to her duty of care as the responsible medical practitioner and in breach of her duty it was reasonably foreseeable had given rise to serious and obvious risk of death and caused death of Ms LEE.

6.7  Lack of embracement by individual medical practitioners of their responsibility to provide safe patient care, not limited to competence in delivering medical care including medications, resuscitation and use of emergency equipment, is more likely to contribute to patient demise even when the facilities including equipment are adequate.”

71.  In a similar vein, Dr Mainland summarised these matters in the Executive Summary of her report, as follows[74]:

“3. Although the cause of death cannot be established with certainty it is my opinion that with her body positioned face down, deep sedation and lack of supplementary oxygen would result for death due to low oxygen levels in the blood and vital organs because of airway obstruction and reduced breathing effort.

4. Other contributing factors include the lack of monitoring by a trained person so delayed recognition of a problem and inadequate timely resuscitation. Resuscitation equipment was available in the facility but not all were utilized. The facility could not transfer an unconscious person onto their back and Dr KWAN went ahead with the surgery with this capability unavailable.

5.  In my opinion if Dr KWAN had followed Hong Kong Academy of Medicine Guidelines on Procedural Sedation (2009)  Ms LEE would not have died.”

72.  I was not persuaded that Grounds 1, 2 and 3 were reasonably arguable in so far as they complained about the combining of Camera 4 and Camera 8 and the admission into evidence of the Combined CCTV and its late disclosure.  Any misalignment or discrepancy between the two cameras in creating the combined CCTV would have been apparent to the jury as the footage of the individual cameras was also adduced into evidence.  In any event, it was a matter of submissions to the jury and they would have been appropriately aware of the points that the parties had made.  Any complaint about the late disclosure of the combined CCTV was answered by the fact that the footage of the individual cameras had been disclosed to the defence well before the trial. 

73.  The defence challenged the admissibility of the Combined CCTV, which the judge ruled admissible.  It was noteworthy that no issue was taken by the applicant regarding the judge’s reasoning for her ruling.  It was also complained that the judge gave inadequate directions on the limited coverage of the CCTV and the failure to give a special direction on inferential reasoning.  The judge gave the appropriate directions on drawing of inferences and as already noted the CCTV footage was before the jury and for them to evaluate and assess like any other piece of evidence.

74.  I should add that various points were made in these grounds concerning Dr Mainland’s evidence which were reasonably arguable but appropriately come within the terms of the general complaint about her evidence as delineated in Ground 8.

75.  I was satisfied that Ground 4 was reasonably arguable.

76.  I was not persuaded that Ground 5 was reasonably arguable to the extent that the judge’s summing-up was unfair and unbalanced. After all, there was no evidence from the defence, and the judge had to summarise and address the evidence as presented at trial.  However, there were obvious and inherent issues with the expert evidence, particularly with Dr Mainland’s evidence, which arguably should have been emphasised in the judge’s summing-up.  The expert evidence was basically addressed by her when she examined the five particulars of the breach of duty of care. [75]  She did refer to some of the criticisms of the expert evidence in the course of examining the breaches of duty but I was satisfied that it was reasonably arguable that critical aspects of the expert evidence were not appropriately or sufficiently emphasised with the jury.  To this extent, I granted the applicant leave to appeal on this ground.  However, it should be noted that the judge’s task was made extremely difficult by the nature and manner in which the expert evidence was presented and challenged. 

77.  I was satisfied that Grounds 6 to 10 were reasonably arguable, and leave was granted to the applicant on these grounds. Ground 8 could incorporate the other criticisms that have been raised by the applicant regarding Dr Mainland’s evidence, which essentially concerned how she formed her opinion or opinions, over a protracted period on various instructions from the prosecution, and the nature and validity of her opinion or opinions based on her expertise and the circumstances of the case and other expert opinions, which she considered or took into account.

The grounds against sentence: Grounds 11 and 12.

Ground 11: The judge erred in considering the particulars of breach of duty of care which formed an inherent part of the offence itself as aggravating factors in sentencing.

78.  Mr Hui submitted that the judge erroneously considered matters which formed the particulars of the offence as aggravating factors in the present case.  They were:

(i)  the applicant’s anticipation of respiratory compromise[76];

(ii)  the applicant’s acknowledgement of a risk of death[77];

(iii)  that the Mindray monitor was giving crucial alerts which were ignored by the applicant[78]; and

(iv)  leaving the deceased in the hands of medically untrained  assistants[79] and the applicant being the only medically trained person in the operation room[80].

79.  Briefly stated, Mr Hui’ submission was that the above matters were inherent in the offence and therefore, should not have been “double counted” as aggravating factors.  He also argued that the judge was wrong to speculate that the reason that the applicant was the only medical trained person in the operation room was due to the applicant’s attempt to keep the costs of the procedure down for the deceased[81].

Ground 12: The sentence of 6 years’ imprisonment was manifestly excessive  and failed to take sufficient account of the mitigating circumstances of the applicant.

80.  Mr Hui complained that the judge failed to take sufficient account of the applicant’s mitigating circumstances in arriving at the sentence of 6 years’ imprisonment, which included the following:

(i)  the lack of any financial gain;

(ii)  a lapse of seven years between the operation and trial;

(iii)  the plight of the applicant and her mother, including their respective medical conditions.  In particular, on humanitarian grounds given the chance of the applicant’s recurrence of cancer (which has now materialized);

(iv)  the chances of re-offending being little to none considering the likelihood of disciplinary actions to be commenced against the applicant; and

(v)  civil action having been commenced against the applicant.

81.  I was satisfied that the grounds of appeal against sentence were reasonably arguable, and accordingly, leave was granted to the applicant.

Conclusion

82.  It followed from the reasons I have given that leave should be granted to the applicant on the grounds I have specified to appeal against conviction and sentence.