HKSAR v. KWAN HAU CHI, VANESSA

HCCC 200/2018

[2021] HKCFI 2978

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 200 OF 2018

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REASONS FOR SENTENCE

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1.  After 27 days of trial, the jury unanimously found the defendant guilty of manslaughter, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance, Cap. 212.

Overview

2.  On 26 June 2014 Ms Lee Kar-ying Josephine (“Lee”) died following a procedure of liposuction performed by the defendant, a registered medical practitioner at the “Regrowth Hair Transplant Centre Ltd,” on the 7^th floor of No. 2 Carnarvon Road, Tsim Sha Tsui in Kowloon (“the Centre”).  Lee’s death led to the prosecution of the defendant and subsequent conviction for gross negligence manslaughter.

The prosecution case

3.  The prosecution’s case was that defendant as Lee’s doctor owed a duty of care to Lee who was her patient.  She was responsible for Lee’s wellbeing, safety and life before, during and after the liposuction procedure. The prosecution alleged that the defendant breached her duty of care.  Her failure in her duty of care amounted to gross negligence which substantially caused the death of Lee.

Issues at trial

4.  The main issues at trial were therefore whether the prosecution had proved the defendant breached her duty of care as particularised in the indictment and whether her failure amounted to gross negligence which substantially caused Lee’s death.

5.  The other central issue at trial was whether Lee was under deep sedation (unconscious sedation) or conscious sedation after the defendant administered a combination of sedative drugs to Lee so as to facilitate the liposuction procedure conducted by the defendant.

The defendant’s breach of duty of care as framed in the indictment

6.  There were five main particulars of breach as pleaded in the indictment.  They were as follows:

(ii) In breach of that duty of care, (the defendant) 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;

7.  From the jury’s verdict and the evidence at trial I shall sentence the defendant on the basis that the defendant had breached all the above five particulars and upon the fact that Lee was under deep sedation after the defendant administered her with a combination of sedative drugs save for a very short period when she came out of deep sedation during the procedure.

8.  Apparent from the jury’s verdict was that the defendant’s failures fell far below the standard of a competent doctor.  The inactions and actions of the defendant substantially caused the death of Lee.  A reasonably competent doctor would have foreseen that the breach of her duties gave rise to a serious and obvious risk of death and her breach was so truly exceptionally bad and so reprehensible.

Background facts

9.  On 30 April 2014 the defendant performed a liposuction procedure on Lee’s abdomen at the Centre.

10.  One of the owner’s of the Centre is Ms Chau Siu Man (Chau).  The defendant was employed by Chau on a part time basis. The defendant was the only doctor to use the purpose built operation room at the Centre for surgeries.  Upon the defendant’s request, Chau permitted the defendant not to charge Lee for the liposuction procedure to be conducted on 26 June 2014. The only fees Lee charged was $10,000 for use of the operation room at the Centre.  Chau agreed to the defendant’s request as the defendant told Chau Lee was her friend and had no money.

Facts of the case

11.  I shall summarise the facts in some detail.  On 26 June 2014 the defendant performed liposuction on Lee’s back for a duration of about 3 hours.  The procedure took place approximately between 1135 hours and 1440 hours in the operation room in the Centre.

12.  Inside the operation room were two CCTV cameras which visually recorded the majority of the inside of the operation room from different angles.  In addition to the visual recording one of the camera’s made an audio recording.  The visual recording captured only the back of Lee’s legs whilst she was lying prone (front down) on the operating table.

13.  During the liposuction procedure the defendant was assisted by four females employed by the Centre.  Two of them were employed as receptionists and the other two as beauticians.  These assistants had no medical qualifications.  They were specifically not qualified in sedation nor were they able to monitor a sedated patient.  None of them knew how to resuscitate a patient.  For two of them it was the first time they had ever been in an operation room.

14.  Approximately 10 minutes before the first infusion of sedative drugs, Lee signed a consent form which was the “consent to operation for liposuction and dissolution of fat” presented to her in the operation room.  At that time the defendant told Lee “read carefully… this might be fatal.”

15.  Recorded on the anaesthetic record was Lee’s weight as 113.5 kg, BP 136/96 and HR96.  Lee lay prone on the operating table for the procedure.

16.  The liposuction procedure started at about 1135 hours when Lee was sedated by an infusion of propofol and a combination of other sedative drugs which included Gentamicin, “Dormicum” (midazolam) and pethidine.  A local anaesthesia known as a tumescent solution was injected into the area of the back.

17.  Equipment to monitor physiological variables called “Passport (Mindray)” was used for intraoperative monitoring of oxygen saturation (SpO₂), heart-rate and blood pressure (vital signs).  The SpO₂ probe was attached to Lee’s toe at about 1139 hours.

18.  After Lee was infused with the combination of sedative drugs at the start of the procedure she was deeply sedated and unconscious.  It transpired only at trial after the careful viewing of the CCTV recordings by the prosecution expert Dr Mainland an anaethesiologist, that Lee was infused with seven separate syringes of propofol.  The first syringe started at about 1134 hours and the seventh  and last syringe at about 1409 hours.  A total of 14 ampoules which amounted to 2,800 mg of propofol was administered to Lee.

19.  This belated uncovering emerged as the prosecution only synchronized the two CCTV camera recordings after the trial had commenced.  This occasioned the viewing of both camera recording in the operation room together as complete picture as opposed to only a partial viewing of one camera recording each time.

20.  Communication and response was lost with Lee almost from the beginning of the operation save for a short period between the 5^th and 6^th syringe of propofol when Lee came out of deep sedation and said the words “painful, painful, painful and don’t press on my hand” at about 1348 hours.  Dr Mainland explained that Lee came out of deep sedation because there was a break of about 6½ minutes between the 5^th and 6^th syringe of propofol and as a result Lee’s sedation became lighter.  However shortly thereafter Lee was infused with the 7^th syringe of propofol and was under deep sedation again.

21.  Whilst Lee was attached to the Mindray machine during the procedure the device alarmed throughout the procedure.  The alarm indicated that there was a problem with Lee’s vital signs however the alarm was ignored and silenced each time by one or other of the assistants pressing on a button on the Mindray.

22.  There was no written monitoring or recording of Lee’s vital signs nor was there a complete record of the drugs administered to Lee.

23.  During the procedure there was no other trained person in the operation room monitoring Lee.  Lee was not supplied with oxygen during the liposuction procedure.

24.  At about 1440 hours once the defendant sutured Lee the liposuction procedure was completed.  Approximately four minutes later at 1444 hours the defendant left the operation room having no intention to return.  The defendant told her assistants to pass a key to Lee, she was engaged and had something to do and to tell Lee to call her if anything.  At that time Lee was still sedated and unconscious.

25.  Lee was then left solely in the care of the four medically untrained assistants whilst she was unconscious.  Lee was detached from the Mindray machine and left prone on the operation table.

26.  At about 1519 hours one of the assistants’ noticed that Lee was not snoring, was unresponsive to patting, did not answer her name and did not move.  At 1520 hours one of the assistants realised the gravity of the situation when she said “oh really such big trouble.”  One noted that Lee looked pale.  As a result of the situation an assistant made a phone call to the defendant.  At 1533 hours one of the assistants said “her tongue is blocking that thing” and went to retrieve an airway.

27.  At 1534 hours the defendant returned to the operation room.  At about 1536 hours an emergency 999 call was made.  At about 1539 hours the defendant called another doctor on her mobile phone and asked if the doctor, knew of a doctor around Tsim Sha Tsui to come to help her.  She said “I am really very scared this time.”

28.  The ambulance men arrived at the Centre at 1538 hours.  They moved Lee from the operating table to the floor of the operation room onto her back (surpine).  They assessed Lee had no pulse but conducted cardiac compressions inserted an airway and gave her oxygen.  The defibrillator indicated a non-shockable heart rhythm.  They moved Lee to a stretcher and immediately took her by ambulance to Queen Elizabeth Hospital at 1612 hours.  A doctor at Accident and Emergency certified Lee dead at 1706 hours on the same day.

Autopsy

29.  An autopsy was conducted by a pathologist Dr Chiao Wing Fu two days after Lee’s death on 28 June 2014.  He labelled the cause of death as “unascertained” because the autopsy did not reveal an abnormality or a fatal pathology that could have been satisfactorily accounted for the cause of death.

30.  As he understood the death occurred shortly after receiving the liposuction operation and before Lee recovered consciousness from the sedation in the beauty center, he suggested expertise from a qualified plastic surgeon and a qualified anesthetist be sought in order to exclude the possibility of medical mishap.  He explained a surgeon’s opinion was needed to see if there was a complication during surgery which included the length of surgery and caring of the patient after the surgery.  Whilst an anesthetist opinion was to be sought about the use of the anaesthetic, the way the doctor administered the anaesthetic and the precaution that the doctor did to monitor the breathing of the patient and care of the doctor to the deceased before she woke up from sedation.

Cause of death

31.  In Dr Mainland’s report[1] she opined at paragraph 6 in her Summary of Conclusions :-

“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.

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

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 patient such as Ms LEE, undergoing liposuction in the prone position, if such 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.”

32.  In the Executive Summary paragraphs 1 to 5 of Dr Mainland’s Report she stated:-

“1. …She (Lee) died after the procedure having not regained consciousness…

2. Ms LEE was deeply sedated. The patient monitor alarmed throughout the procedure. There was no trained person monitoring her. Dr KWAN left after the procedure without assessing Ms LEE. She returned after a phone call reporting that Ms LEE’s condition had deteriorated with a low oxygen level. Dr KWAN called for help but did not provide resuscitation according to Basic Life Support.

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.

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

Personal background of the defendant

33.  The defendant is 38 years of age and single.  At the time of the incident she was 31 years old.  She is the only child to divorced parents.  She attended boarding school in the UK for secondary school and achieved top grades.  She returned to study medicine in Hong Kong as she needed to take care of and be closer to her mother who suffered from breast cancer.  She obtained her qualifications of Bachelor of Medicine and Bachelor of Surgery from the University of Hong Kong in 2006.  She registered as a medical practitioner on 17 July 2007.  The defendant was herself diagnosed with cancer in 2018.  She has had two surgeries including chemotherapy and radiotherapy.  She is presently suffering from costochondritis.

34.  In respect to the defendant’s medical practice after graduation the defendant was trained in the Hospital Authority (HA).  Since the defendant’s interest was in cosmetic surgery/aesthetics she decided to leave the HA as it does not provide specialist training on this.  So in order to obtain hands on training she followed “si-fu’s” otherwise known as “masters” and attended courses abroad.

35.  After this incident she stopped performing surgical procedures and worked as an outreach doctor helping the elderly and disabled in a private clinic.

Mitigation

36.  In mitigation counsel for the defendant Mr Paul Leung assisted by Ms Sharon and Sheera Chan drew attention to the defendant’s good character and to the fact that she has no disciplinary record kept by the Medical Council of Hong Kong.

37.  Mr Leung emphasized that as a result of this conviction it is more than likely that it will be destruction to her medical career as she will most certainly face disciplinary proceedings.  The result of the proceedings will likely be either one of a suspension or she would be struck off from the list of registered medical practitioners.  Moreover arising from this incident is a civil case for personal injuries claim which has already commenced against her.

38.  Mr Leung remarked this incident has been hanging over the defendant’s head for 7 years and has brought about a lot of stress to the defendant as well as her parents.

39.  Mr Leung highlighted the defendant had derived no benefit from the surgery.  The liposuction was conducted through special arrangement because Lee was a close friend of the defendant’s.  The defendant specifically arranged for Lee not to be charged and a discount for the liposuction procedure was offered.  It was therefore clear that the defendant and/or the Centre was/were not preying on the vulnerable and/or were not motivated by monetary gain.

40.  Lee underwent a similar procedure performed by the defendant just two months before in April 2014 which was uneventful.  The defendant had performed many similar surgeries in the past and she likely thought that the subject liposuction would likewise be uneventful.  In addition, in the present case there was no allegation against the defendant of any shortcomings in her surgical skills, the Centre’s standards, sterilization, and or drug overdose.

41.  Mr Leung submitted that in all the circumstances, it was likely a poor judgment call which led to the present incident.  He rationalised that the defendant was likely under a false sense of security that no adverse events would arise given the previous uneventful liposuction using similar sedative medication performed on Lee.

42.  Eight letters and a letter of appreciation have been submitted in mitigation.  One of those was from the defendant’s mother who described her daughter as a caring kind-hearted and filial daughter who supported her financially.  Her mother only has 20% vision and therefore relies on the defendant for her day to day living physically and mentally.  I shall not detail the other letters but suffice it to say they are glowing testimonials on the defendant from numerous doctors, a district councillor and friends.  They spoke of the defendant as a caring, good, dedicated doctor who provided free medical care to those in need or to friends.

Cases submitted for consideration

43.  Ms Julianna Chow counsel on fiat and Ms Chan Sze-yan SPP for the prosecution submitted the following cases: -

(i) HKSAR v Mak Wing Ling [2020] HKCFI 3069 – convicted after trial sentenced to 3½ years imprisonment. Barnes J adopted a starting point of 4½ years’ imprisonment and discounted 1 year for extenuating mitigating factors.

(ii) HKSAR v Chau Kai-Kwok (D1_ and two others HCCC180/2019 – D1 convicted after trial sentenced to 12 years’ imprisonment.

(iii) R v Kovvali [2014] 1 Cr.App.R (s) 33 – the defendant pleaded guilty and was sentenced to 2 years and 6 months’ imprisonment.

44.  For the defendant Mr Leung submitted the following cases:-

(i) HKSAR v Harry Sudirman CACC 486/2003 - He was convicted after trial sentenced 2 years’ imprisonment.

(ii) HKSAR v MAK Wan-ling (the Prosecution’s case (i) above)

(iii) R v Misra [2005] 1 Cr. App. R. 21 - The defendant was convicted after trial and was sentenced to 18 months’ imprisonment, suspended for 2 years.

(iv) R v Bawa-Garba [2016] EWCA Crim 1841 - She was convicted after trial and was sentenced to 2 years’ imprisonment, suspended for 2 years.

(v) R v Sudhanshu Garg [2013] 2 Cr. App. R. (S.) 30 – He pleaded guilty and was sentenced to 2 years’ imprisonment.

(vi) R v Bala Kovvali [2014] 1 Cr. App. R. (S.) 33 – as above (iii)

(vii) R v Selin [2017] 1 Cr. App. R. 24- He was sentenced to 2 years and 6 months’ imprisonment. Appeal against conviction, allowed and conviction quashed.

45.  The defendants in the above cases were doctors and sentenced for the offence of (medical) gross negligence manslaughter.  There is an extensive range of the length of sentences in the cases cited above from 2 years’ imprisonment suspended for 2 years to 12 years’ imprisonment arising from the different factual matrix of each case.  It is unnecessary for me to set out the facts pertaining to the above cases.  I do not find it helpful to attempt to compare those cases with the present as no two cases are the same, each case is fact sensitive.  References to sentences imposed in previous cases are not of any real assistance they can do little more than provide broad guidance.

46.  In Garg above it with the first case since the coming into force of the Criminal Justice Act 2003 in the Court of Appeal in the United Kingdom which dealt with an appeal against sentence in the context of gross negligence manslaughter.  Although the Act is not applicable in Hong Kong the principles set out are of assistance in sentencing.  One of those principles is that crimes which result in death should be treated seriously, the other was the level of culpability of the defendant.  Lord Judge CJ in giving judgment for the court in that case said[2]:-

“We were told, and we believe it to be correct, that this will be the first occasion since the Criminal Justice Act 2003 came into force on which this Court has considered an appeal against sentence in the context of gross medical negligence. Our decision will no doubt be considered by other sentencing courts, but beyond broad general observations, this is not a guideline decision which purports to encompass the full ambit of sentencing in cases of manslaughter by gross medical negligence. Our decision reflects specific individual features of the case. Even in cases of medical gross negligence manslaughter, where the consequence of the harm in every case is identical, that is, the death of a patient, the level of culpability of the defendant will vary considerably. There will certainly be cases of greater culpability than this, and other cases where the culpability will be significantly lower. In the end, of course, all will be cases involving gross rather than simple negligence, and therefore liable to involve the perpetrator in a criminal prosecution rather than provide the victim with civil remedies only.” (My own emphasis.)

Consideration of sentence

47.  The penalty for the offence of Manslaughter is set out in Section 7 of the Offences against the Person Ordinance Cap 212.

It provides:

“Any person who is convicted of manslaughter shall be liable to imprisonment for life and to pay such fine as the court may award.”

48.  There are no guideline tariffs for manslaughter cases, as each case ultimately rests on its own particular facts and varies significantly in their circumstances.

Victim Impact Reports

49.  It is trite law in sentencing for dangerous driving causing death cases the courts take into account the impact the death has caused to the families of the deceased, the same applies in gross negligence manslaughter cases see HKSAR v Lai Sai-ming[3] and HKSAR v Chan Ho Ming.[4]

50.  Stock VP giving judgment for the court HKSAR v Chan Kwok Fai[5] (a dangerous driving causing death case) said[6] -

“…As a result, the lives of two people have been lost and injuries occasioned to some 30 persons. Whilst culpability is the dominant factor to be taken into account – the impact on the families of those killed is nonetheless a matter that should certainly be taken into account: see R v Cooksley, para. 11.”

51.  In Rv Cooksley[7] Lord Woolf C.J., in giving judgment for the court said at paragraph 11 (iii):-

“iii) Where death does result, often the effects of the offence will cause grave distress to the family of the (sic) diseased (deceased). The impact on the family is a matter that the courts can and should take into account. However, as was pointed out by Lord Taylor C.J. in Attorney General’s References Nos.14 and 24 of 1993 (Peter James Shepherd, Robert Stuart Wernet) (1994) 15 Cr.App.R.(S.) 640 at p.644:

‘We wish to stress that human life cannot be restored, nor can its loss be measured by the length of a prison sentence. We recognise that no term of months or years imposed on the offender can reconcile the family of a (sic)diseased (deceased) victim to their loss, nor will it cure their anguish.’”

52.  I have before me two victim impact reports. One on Lee’s mother and the other on Lee’s 9 years’ old daughter and boy-friend/father of their daughter.  They are experiencing a lasting and long bereavement over the loss of Lee coupled with distress and disorders.  Lee’s sudden demise created tremendous disruptions to their family and livelihood. 

53.  Lee and her mother operated a dancing school together since 2006.  They had earned a stable income.  Lee was the main dance teacher while her mother also ran some classes.  They spent most of their time together.  The death of Lee has destroyed her career, stable and enjoyable living and financial stability.  She is experiencing deep sorrow at the loss of her daughter and the loss of a mother for her grand-daughter. 

54.  Lee’s boyfriend worked part-time at the dance school but agreed with Lee to take up the primary childcare role to enable Lee to be the main breadwinner working full time as a dance teacher.  As a result of Lee’s sudden death, the closing down of the school he remains the primary carer and homemaker and survives on income from CSSA. 

55.  Lee’s daughter was a baby when her mother passed away.  She is experiencing a permanent loss of a mother which she has always been yearning and mourning for, feeling sad and incomplete. She has only recently come to know the cause of her mother’s death which has led to an upsurge of anger towards the doctor. 

56.  The late victim’s family is now facing tremendous disruption, financial instability, hardship and the loss of a significant person in their lives. 

57.  Although this case has been a disaster to the defendant’s career and negative impact on her mother this does not outweigh the grief and devastation of the family who lost Lee.

The defendant’s culpability

58.  In sentencing the defendant it is necessary for me to have regard to the defendant’s culpability.  The facts of this case are so serious as to warrant an immediate custodial sentence.

59.  The prosecution experts, Dr Mainland, the anaethesiologist, and Dr Chan Yu-wai, a specialist surgeon in plastic and reconstructive surgery expressed the view that the breach of duty in this case constituted a very serious departure from normal professional standards.  These included amongst others, factors such as:-

(i) no pre-surgery assessment of Lee’s medical condition (such as a full work up of comorbidity associated with obesity given her weight) such assessment would have shown if Lee had an increased risk of cardiorespiratory compromise.

(ii) Lack of documentation and/or lack of records of necessary information. There was no record of a peri-operative interview with Lee regarding the nature of the surgery, the potential risk associated with the procedure.

(iii) The anaesthetic drug record was skeletal. There was an absence of detailed written records of the dosages of drugs, the time of administration or the route of administration.

(iv) There was no written record of the monitored variables (vital signs) from the Mindray monitor during or in the recovery phase of the procedure.

(v) There were no written records of the operation which should include the name of the person performing the operation, the site on the body where the surgery is being performed, the posture of Lee nor the amount of fat aspirated during the liposuction and how the wounds were sutured.

(vi) No supplemental oxygen was given despite the combination of sedative drugs administered, particularly the drug propofol.

(vii) There was no post-operative monitoring whatsoever. Once Lee was sutured the Mindray machine was detached whilst Lee was still under sedation and unconscious.

(viii) The defendant left Lee in the operating room with medically untrained assistants whilst Lee was still sedated and unconscious in a prone position after a procedure that lasted about 3 hours.

60.  I consider the following to be aggravating factors.  Before the commencement of the surgery the defendant anticipated that Lee’s respiratory condition could be compromised.  At the beginning of the surgery at 1109 hours the defendant said:-

“Get the airway out just in case… She’s the kind who can’t breathe. I’m worried she will get tired when she’s asleep.”

Despite her expectation, the defendant did not ensure optimisation of Lee’s airway or provide her with oxygen during the procedure. Lee’s airway and oxygenation were not established or maintained. The airway was not used and no supplementary oxygen was administered.

61.  The defendant understood that death was a risk of the procedure.  She told that to Lee at the time Lee signed the consent form.  Despite the acknowledgement of the risk of death, the defendant failed to monitor or assess Lee’s vital signs during and after the procedure.

62.  The defendant displayed a blatant and serious disregard to the wellbeing of Lee and to the valuable warning that Lee’s life was at risk and in jeopardy.  The Mindray machine was alarming throughout the procedure.  The alarm was a crucial alert giving a clear and emphatic warning to the defendant that something was wrong with Lee.  Even if the defendant believed the machine was “too sensitive”, she should have reset the machine or checked the reason why it was alarming.  Her actions of silencing the alarm and ignoring it was shocking.

63.  Appallingly, the defendant left Lee in the hands of medically untrained assistants when she knew that Lee was sedated and not awake or conscious.  I would be so bold as to suggest that no patient would have opted for this surgery if they were told by their doctor prior to the surgery, “after the operation I will leave you in the care of my medically untrained assistants who are beauticians and receptionists whilst you are still sedated and unconscious.”  No doctor let alone a person in their right mind would have expected a doctor to leave Lee when she was not awake.  Obviously the defendant should have waited until Lee was completely awake from her sedation and stable before departing.  It remains a mystery as to what the defendant’s engagement was.  The defendant’s conduct in leaving when she did can only be catergorised as deplorable.

64.  Mr Leung’s submission that defendant was likely under a false sense of security that no adverse events would arise given the previous uneventful liposuction, using similar sedative medication performed on Lee is unsound.  If on the previous occasion what the defendant did was the same or similar to this occasion it was perhaps purely fortuitous that a fatal or serious outcome did not follow.  The fact that something is done erroneously previously and nothing adverse happened does not make it right.

65.  The defendant was the only medically trained person in the operation room.  The surgical procedure lasted for about 3 hours.  As Dr Chan stated the defendant’s concentration would be on the surgery as the surgeon, she would therefore be unable to properly monitor Lee’s vital signs.  The defendant had lost all rational verbal communication and response with Lee as she was deeply sedated.  With no other properly qualified person to administer and monitor Lee’s sedation, this was a risky situation that should never have arisen.  Although I assume, the defendant may have tried to have kept the costs of the procedure down for Lee this was done wholly to the detriment of Lee.

66.  Taking all the above considerations I have mentioned into account, I consider these were immense failings in the defendant’s duty commencing at the outset until the tragic end.  The whole scenario from beginning to end was a dangerous one.  The defendant’s conduct in carrying out this procedure as found by the jury fell far below the standard of care incumbent on her and was so truly exceptionally bad.  The jury found that the defendant’s breach of her duties gave rise to a serious and obvious risk of death and that they substantially caused the death of Lee.

67.  Lee placed her life into the defendant’s hands.  The defendant turned a blind eye to the hazards of the situation.  She disregarded the need to attend to Lee’s airway and provide her with supplementary oxygen when she administered the combination of sedative drugs.  She ignored and silenced the alarm on the Mindray.  Critically the defendant left Lee in the hands of assistants who were not trained in resuscitation nor were they able to recognise any deterioration in Lee’s condition.

68.  Lee was a vulnerable patient because of her obesity and the nature of her surgery whilst lying prone. Lee understandably trusted and relied on the expertise and competence of her friend, the defendant who failed her miserably.  The defendant displayed a casual, carefree approach to this invasive procedure performed under deep sedation.

69.  The defendant’s conduct fell so far short of what could reasonably have been expected of her that such conduct was so exceptionally bad such that the jury found her conduct required criminal punishment.  This was an abysmal failure of her duty of care incumbent on her and showed such high disregard to the life and safety of Lee.

70.  Given the magnitude of the defendant actions and inactions, I conclude that a sentence of 6 years’ imprisonment is appropriate to which I so sentence her.

Postscript

71.  Although I accept Mr Leung’s claim that the defendant had performed numerous previous similar surgeries and other cosmetic surgeries without any complaint from her patients.  I do not have any cogent proof of the defendant’s competency in cosmetic surgery nor her ability to attend to any unexpected complication that may arise from deep sedation.  I expected some certificates from recognised organisations, universities or establishments on her satisfactory completion of courses in cosmetic surgery.  A stark statement from Mr Leung that the defendant has followed some “si-fus” in her learning of these skills, without revealing the number of hours of such training, the place, the course and even the identity of the “si-fu” is a matter which creates in me a feeling of extreme unease.  This is basic and essential information from any professional which I and society would expect from the defendant who had performed these surgeries.  Of particular concern is the carrying out of these surgical procedures by the defendant a medical practitioner at a beauty centre.

72.  Subsequent to this incident on 30 November 2018 the Private Healthcare Facilities Ordinance Cap. 633 was gazetted.  Cap. 633 protects patient safety and rights through the introduction of a new regulatory regime for Private Health Facilities (PHFs).  Four types of PHFs are subject to regulation, namely hospitals, day procedure centres, clinics and health services establishments.  The Office for Regulation of Private Healthcare Facilities (ORPHF) is implementing the regulatory regime in phases based on the types of PHFs and their risk levels.

73.  This incident is a classic example of the need not only of the regulation of private healthcare facilities in Hong Kong but of the ease at which medical practitioners can conduct high-risk medical procedures in these facilities.  People have great faith in doctors and in their competence in what they claim they can do. 

74.  As Dr Mainland remarked[8]:

“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.”

75.  So far as I am aware there have fortunately been few deaths occurring as a result of medical procedures at these private health care centres but one death is one too many in a situation like this.  It is essential that the high standards of the medical profession in Hong Kong as recognised are maintained and that situations such as this do not arise again.