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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REASONS FOR DECISION
(on the application to amend the indictment)

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The application

1.  There are three defendants in this case.  Each one faces one count of Manslaughter, contrary to Common Law and punishable under Section 7 of the Offences against the Person Ordinance, Cap 212.

2.  The prosecution applied to amend the indictment in relation to D1 and D3 on the first day of hearing, notice having been given some two months before.  After considering the submissions advanced, I refused to grant leave for the prosecution to amend the indictment.  I indicated that I would give my reasons later, this I now do.

The proposed amendment

3.  I will first set out the indictment with the proposed amendment underlined so that one can see clearly what the proposed amendment was about:

“ First Count (against 1st accused only)

STATEMENT OF OFFENCE

Manslaughter, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance, Cap.212.

PARTICULARS OF OFFENCE

CHOW Heung-wing, Stephen, on the 10th day of October, 2012, in Hong Kong, together with CHAN Kwun-chung and MAK Wan-ling, unlawfully killed CHAN Yuen-lam also known as CHAN Oi-lin (‘the said CHAN Yuen-lam’) by gross negligence in that –

(i) Being the owner and person in effective control of a number of companies held out as the ‘DR Group’, including DR Esthetic Centre (Causeway Bay) Limited, Hong Kong Mesotherapy Centre Limited and Asia Pacific Stem Cell Science Limited which marketed, prepared and administered to the said CHAN Yuen-lam a product known as CIK/AI therapy owed a duty of care to the said CHAN Yuen-lam;

(ii) In breach of that duty of care, in the knowledge that the said CIK/AI therapy was based on experimental process for the treatment of cancer and which involved the extraction, manipulation in a laboratory and reintroduction of blood taken from the said CHAN Yuen-lam (“the said blood product”), failed to take reasonable care for the safety of the said CHAN Yuen-lam by –

(a) Failing to ensure that a properly qualified person was responsible for preparing and producing the said blood product;

(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 bacteria testing;

(c) Failing to ensure that the said blood product had, prior to leaving the laboratory where it had been prepared, undergone viral and bacteria testing and that such had been documented;

(d) Failing to devise, institute, enforce and maintain a safe system requiring the Doctor, MAK Wan-ling, to have satisfied herself that such viral and bacteria testing had been carried out prior to administration of the said blood product to the said CHAN Yuen-lam, so as to ensure the same was free of contamination;

(e) Failing to devise, institute, enforce and maintain a safe system requiring the Doctor, MAK Wan-ling, to ascertain, assess and monitor any adverse reactions exhibited by recipients of CIK/AI therapy and ensuring that timely and appropriate medical intervention would be provided;

(f) Failing to ensure that the said CHAN Yuen-lam was fully informed of the risks involved in the administration of the said CIK/AI therapy;

(iii) His aforesaid breach of duty amounted to gross negligence on his part; and

(iv) His aforesaid negligence was a substantial cause of the death of the said CHAN Yuen-lam.

Second Count (against 2nd accused only)

STATEMENT OF OFFENCE

Manslaughter, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance, Cap.212.

PARTICULARS OF OFFENCE

CHAN Kwun-chung, on the 10th day of October, 2012, in Hong Kong, together with CHOW Heung-wing, Stephen and MAK Wan-ling, unlawfully killed CHAN Yuen-lam also known as CHAN Oi-lin (‘the said CHAN Yuen-lam’) by gross negligence in that –

(i) Being the person responsible for the preparation of a product known as CIK/AI therapy on behalf of Asia Pacific Stem Cell Science Limited, which the said CIK/AI therapy was administered to the said CHAN Yeun-lam, owed her a duty of care;

(ii) In breach of that duty of care, in the knowledge that the said CIK/AI therapy was based on experimental process for the treatment of cancer and which involved the extraction, manipulation in a laboratory and reintroduction of blood taken from the said CHAN Yuen-lam (“the said blood product”), failed to take reasonable care for the safety of the said CHAN Yuen-lam by –

(a) Failing to ensure that he was fully qualified to undertake the preparation and production of the said blood product;

(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 bacteria testing;

(c) Failing to ensure that the said blood product had, prior to leaving the laboratory where it had been prepared and produced, undergone viral and bacteria testing and that such had been documented so as to ensure the said blood product was free of contamination;

(d) Failing to devise, institute, enforce and maintain a safe system documenting the carrying out of all necessary viral and bacteria tests to accompany the said blood product when it left the laboratory;

(iii) His aforesaid breach of duty amounted to gross negligence on his part; and

(iv) His aforesaid negligence was a substantial cause of the death of the said CHAN Yuen-lam.

Third Count (against 3rd accused only)

STATEMENT OF OFFENCE

Manslaughter, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance, Cap.212.

PARTICULARS OF OFFENCE

MAK Wan-ling, on the 10th day of October, 2012, in Hong Kong, together with CHOW Heung-wing, Stephen and CHAN Kwun-chung, unlawfully killed CHAN Yuen-lam also known as CHAN Oi-lin (‘the said CHAN Yuen-lam’) by gross negligence in that –

(i) Being a properly registered Doctor responsible for administering to the said CHAN Yuen-lam a product known as CIK/AI therapy on behalf of the DR Esthetic Centre (Causeway Bay) Limited and/or Hong Kong Mesotherapy Centre Limited, both companies being part of the ‘DR Group’, owed a duty of care to the said CHAN Yuen-lam;

(ii) In breach of that duty of care, in the knowledge that the said CIK/AI therapy was based on experimental process for the treatment of cancer and which involved the extraction, manipulation in a laboratory and reintroduction of blood taken from the said CHAN Yuen-lam (“the said blood product”), failed to take reasonable care for the safety of the said CHAN Yuen-lam by –

(a) Failing to ensure that a properly qualified person was responsible for preparing and producing the said blood product;

(b) Failing to ensure that all necessary viral and bacteria tests had been carried out on the said blood product and that such had been documented prior to administering it to the said CHAN Yuen-lam and/or failing to carry out appropriate viral/bacteria tests herself, so as to ensure the said blood product was free of contamination;

(c) Failing to ensure that the said CHAN Yuen-lam was fully informed of the risks involved in the administration of the said CIK/AI therapy;

(d) Failing to properly ascertain, assess and monitor the condition of the said CHAN Yuen-lam following the CIK/AI therapy by way of infusion of blood product administered by her in the afternoon on 3 October 2012;

(e) Failing to ensure that the said CHAN Yuen-lam was admitted to hospital as a matter of emergency following the CIK/AI Therapy for timely and appropriate medical intervention necessitated by the adverse reactions exhibited by the said CHAN Yuen-lam;

(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 CHAN Yuen-lam.”

4.  It can readily be seen that the proposed amendment dealt with what can loosely be described as “post-infusion management”.

5.  The application was based on Section 23(1) of the Criminal Procedure Ordinance Cap 221 which reads:

“ (1) Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.”

6.  There were two main issues which I had to decide: (a) whether there was evidential basis for the proposed amendment; and (b) whether the delay in application cause injustice to the defence.

Prosecution stance

7.  Mr Raymond Leung SC with Mr John Murray, Ms Margaret Lau and Mr Eric Tsoi, in their written submission dated 5 May 2017, with Mr Leung also making oral submission, gave their grounds in support of the application.

8.  The prosecution submitted that the amendment sought was in accordance with evidence to be adduced (relying on HKSAR v Wong Kim Fai[1]).

9.  The Prosecution referred me to the statements of Dr Li Chi Kong dated 23 July 2014 and Dr Albert Lie dated 18 July 2014, and submitted that these two experts had commented on the standards of dealing with post-infusion adverse reactions.  In addition, Mr Leung also referred me to the report of Dr Godfrey Chan in relation to CIK therapy.  The prosecution submitted that they were simply relying on evidence already in the Committal Bundle, which was brought to the notice of D1 and D3.  The amendment was necessary to reflect on the criminal liability of D1 and D3 in dealing with the adverse reactions of the deceased after infusion.

10.  Mr Leung also referred me to the statement of Professor Yuen Kwok Yung dated 3 April 2017, in particular A6 (which dealt with D3’s action of injecting potent antibiotics to one of the clients/patients Wong Ching Bor (WCB) in support of his contention that there should have been a safe system (as reflected by the proposed amendment).

11.  Mr Leung further referred me to the opinion expressed by Professor Yuen in the same statement, in that the delay of hospitalization and investigation leading to the delay of initiation of specific treatment is “likely to cause or contribute to her death” (A13), and that if the deceased had been admitted to hospital immediately on 3 Oct 2012 around mid-night (when another client/patient WCB received the injections from D3), “the outcome of the deceased may not be the same”.

12.  In response to the defence contention (in the written submission) that Professor Yuen’s opinion did not support the prosecution’s claim that the proposed amendment of breach of duty “post-infusion” was a substantial cause of the death of the deceased, the prosecution submitted that when Professor Yuen used those terms (“likely to cause or contribute to her death”, “the outcome of the deceased may not be the same”), such expressions were nothing more than an expert giving his honest opinion.

13.  The prosecution cited the case of R v Bracewell (Michael Geoffrey)[2] (which was applied in R v Tai Muk Kwai[3]), in particular the dictum of Ormrod LJ, in support of their contention that it was not the jury’s duty to judge with scientific certainty.  The jury has to come to its findings of fact based on the evidence.  The medical evidence is only part of the material to be considered by the jury.  The factual matrix of the case together with Professor Yuen’s opinion would form the basis for the jury’s determination whether the proposed breach was a substantial cause of the death of the deceased.  The prosecution submitted that it is not appropriate to “speculate that the scientific causation lacks evidence such that amendment to the charge should not be allowed”.

14.  Further, since the defence was put on notice by the two statements (of Dr Li and Dr Lie) in the Committal Bundle, and by the prosecution alerting them of the application two months ago, no prejudice or injustice would be caused to D1 or D3.  If they were thinking of engaging experts in their defence, they could have done so well before the trial.  Even if they had to seek assistance from expert(s) as a result of the amendment, that could be done as the trial is set down for over 50 days.

15.  In a nutshell, the prosecution submitted that the defence was not taken by surprise; the delay did not cause any injustice or prejudice; and the evidence supported the amendment, this Court should grant the application.

The stance of the defence

D1

16.  Mr MK Wong SC leading Mr Charles Chan for D1, in their written submission dated 5 May 2017, gave their grounds of opposition.  Mr Wong also made oral submission during the hearing.

17.  Counsel for D1 emphasized that the delay in obtaining a further statement from Professor Yuen, and in applying to amend the indictment so close to the trial, caused injustice to D1 as the focus of the defence team would be affected, with insufficient time to prepare for the new allegation.  Counsel for D1 stressed that the prosecution has years to prepare its case and yet they only applied for the amendment at such a late stage.  D1 might have to consider getting expert evidence to answer the new allegation within a short period of time.  While D1 could apply for an adjournment for the preparation, any such adjournment would itself be unjust as justice delay is justice denied.  As D1 did not wish to have the trial postponed, if the amendment was granted, the prejudice to D1 could not be cured.

18.  Counsel for D1 further submitted that the original indictment was only concerned with the process of CIK or the handling of blood products in relation to the prevention of bacterial contamination which caused the death.  The proposed amendment opened a totally new area which had no connection with the other particulars.  This new area caught the defendants totally unprepared.  The inclusion of the proposed amended particulars amounts to a material change of the prosecution case and should not be allowed.

D3

19.  Mr Peter Duncan SC leading Ms Deanna Law for D3 initially did not oppose the proposed amendment to Count 3.  However, in their written submission dated 12 May 2017, there was a complete change of heart.

20.  The main ground of opposition was that according to the evidence to be relied on by the prosecution, there was no evidential foundation upon which a jury could find proved beyond all reasonable doubt that either D3’s alleged omission in post-infusion management of the deceased or the alleged delay in admitting her to hospital was a substantial cause of her death.  The two statements (by Dr Li and Dr Lie) did not provide any evidence of the necessary link between the post-infusion reaction and treatment and the death of the deceased.

21.  Counsel for D3 further submitted that the only witness who addresses such a link was Professor Yuen who gave a statement late in April this year.  However, Professor Yuen used terminologies such as “likely to cause or contribute to [the deceased’s] death”; and “the outcome may not be the same”, Professor Yuen’s evidence was insufficient for any jury, properly directed, to conclude beyond reasonable doubt that the conduct alleged in the proposed added particulars were a substantial cause of the death of the deceased.

22.  Mr Duncan also brought to my attention that the defence were only recently provide with hundreds of pages of hospital notes on the deceased and should the amendment be granted, D3’s defence team would need to seek the assistance of an expert to go through all those records.

My consideration

23.  Having read the two statements by Dr Li and Dr Lie relied on by the prosecution, and the additional statement of Dr Chan, I agree with the submission of counsel for D3 that there was no evidential foundation upon which a jury could find proved beyond all reasonable doubt that either D3’s alleged omission in post-infusion management of the deceased or the alleged delay in admitting her to hospital was a substantial cause of her death.

24.  Whilst Dr Li and Dr Lie both referred to what a proper “post-infusion management” should be, there was no causal link between the “post-infusion” action or treatment and the cause of death of the deceased.  There was nothing to suggest that the delay in either getting the deceased to hospital or initiating treatment was a significant cause of the death of the deceased.  The “link” came from Professor Yuen who was approached recently and gave his opinion only on 3 April 2017.  While appreciating that Professor Yuen might not be able to assert with certainty the outcome had the deceased been sent to hospital earlier, it must be borne in mind that all he could say was that “the delay of hospitalization and investigation leading to the delay in initiation of specific treatment is likely to cause or contribute to [the deceased’s] death” (emphasis applied).  While medical/expert evidence is only a part of the evidence to be considered by the jury, when an expert was only able to use terms such as “likely to cause or contribute to”; “the outcome may not be the same”, I am of the view Professor Yuen’s opinion (considered together with the factual evidence currently available) will not be a sufficient basis for a jury, properly directed, to conclude beyond reasonable doubt that the alleged breach of duty in the proposed amendment is a substantial cause of the death of the deceased.

25.  In coming to this conclusion, I have considered the dictum of Ormrod LJ in the case of Bracewell relied on by the prosecution.

26.  Bracewell was a case involving the applicant Bracewell, who faced one count of Murder together with another man Lockwood.  Bracewell and Lockwood burgled the house of an old man.  The old man was later found dead, with multiple injuries, including bruises in his neck, indicating his neck had been gripped, probably by two hands.  Both defendants denied having anything to do with the old man’s death.  Bracewell’s account was that Lockwood had entered the house before him and it was sometime before he reached the old man’s room.  Upon entry, he found the old man seriously injured and semi-conscious, but was still able to call “help” and moved his hands about.  Bracewell and Lockwood tied the old man up and Lockwood also put a gag in the old man’s mouth.  Lockwood then searched the room while Bracewell stayed with the old man and tried to reassure him.  Lockwood then went downstairs to look around.  The old man made a gurgling sound so Bracewell removed the gag.  He tried to revive the old man but found that he was dead.

27.  The medical evidence of the doctor (Dr Green) was that the cause of death was heart failure due to manual strangulation in an old man who had been suffering from fairly advanced heart disease.  The alternate possibility was that he had died of acute heart failure consequent upon the severe beating he had sustained.  It made little difference to the prosecution whether the old man’s heart had failed as a result of strangulation, or of shock due to multiple injuries.  The difference was important to Bracewell.  If Bracewell’s account was true, there had to be an appreciable interval in time between the removal of the hands from the neck and death (enough time for the two of them to tie up the old man, for Lockwood to put a gag in the old man’s mouth, for Lockwood to search the room and to go downstairs to continue the search).  In Dr Green’s opinion, the death was caused by manual strangulation and not more than about two minutes could have elapsed before death occurred.  Cross-examination by counsel for Bracewell of the doctor was directed to displacing such a conclusion.  Counsel put forward an alternative possibility, namely, that the deceased had been “partially strangled” and then after a lapse of time, had had a “heart attack” as a result of his injuries and died.  Dr Green’s evidence was that he could not, as a scientific certainty, rule out that there was the application of force, partial strangulation, recovery and then a fatal heart attack though he strongly inclined against that view.  The doctor also said he had found no evidence of a heart attack.

28.  The summing up to the jury (in relation to Dr Green’s evidence concerning the alternative possibility) was that the witness was speaking from a scientific point of view and the jury’s duty was not to judge scientifically or with scientific certainty.

29.  On appeal, one of the grounds advanced was that the judge had misdirected the jury on the effect of Dr Green’s evidence.  Ormrod LJ, giving judgment for the court, considered the summing up and said the direction “correctly draws the distinction between … scientific proof … and legal proof.”  Ormrod LJ further commented that what the expert had said in substance was that though he could not exclude an alternative hypothesis (as the available data may be inadequate to prove scientifically that the alternative hypothesis is wrong), the effect of his evidence as a whole can be expressed in terms such as “But for all practical purposes (including the jury’s), it is so unlikely that it can safely be ignored.”

30.  The judgment of the Court of Appeal in Bracewell must be viewed with reference to the particular circumstances of that case.  The facts in Bracewell and the expert medical adduced in that case are very different from those to be adduced in the present case.  I do not find the dictum of Ormrod LJ of use in this case.

31.  Strictly speaking, it is not necessary for me to further consider the issue of delay.  I would nevertheless like to say something about it.

32.  Since there is no causal link between the “post-infusion” action or treatment and the cause of death of the deceased expressed in the opinion of Dr Li and Dr Lie in their statements which are in the Committal Bundle, and bearing in mind the rather detailed particulars already stated in the original indictment, it would not be fair to suggest that the defence had been put on notice that the delay in getting the deceased to hospital or initiating treatment is a substantial cause of the death of the deceased.

33.  It should also be borne in mind that the prosecution had deemed it necessary to obtain a further statement from Professor Yuen for his opinion in relation to “post-infusion” action (or the lack thereof) and the death of the deceased.  This act of the prosecution further strengthens my view that the statements of Dr Li and Dr Lie did not put the defence on notice that the alleged failure to have proper “post-infusion management” was a substantial cause of the death of the deceased.

34.  This case was set down in January 2016 to be heard in 2017, with 55 days reserved.  Clearly the defence would have been preparing their defence in accordance with the allegations in the indictment.  The prosecution’s application to amend the particulars with the introduction of “post-infusion management” must have come as a complete surprise to the defence.

35.  I had no less than 4 pre-trial reviews with parties and it was only at the second PTR on 13 March 2017 that there was an indication of an application to amend the indictment, with a formal notice of the exact amendment being made to parties only on 27 March 2017.

36.  Further, I was informed that over 200 pages of hospital records of the deceased were disclosed to the defence recently.  The defence team of D1 and D3 would need to engage their expert to go over those records should the amendment be allowed.

37.  Had I been satisfied that the evidence to be adduced by the prosecution provided the basis for the jury to consider whether the proposed added particulars substantially caused the death of the deceased, the delay in the application for amendment would have caused injustice to the defence.  The particulars of the original indictment had nothing to do with “post-infusion management”.  The inclusion of the proposed new particulars would have necessitated the defence team to shift or to re-focus their case to meet the added allegation.  Whilst an adjournment would have given the defence time to prepare, in view of the fact that this case was set down back in 2016, it would have been extremely difficult to find new trial dates should there be an adjournment.

38.  In any event, Mr Wong had clearly indicated that D1 would not ask for an adjournment as justice delay is justice denied.  Mr Duncan did not ask for an adjournment either.  Had I allowed the application to amend, the defence team of D1 and D3 would have been forced to deal with the new area while the trial is going on.  It would have been most unfair to the defence.

39.  For these reasons, I refused the application of the prosecution to amend the indictment.