HKSAR v. LAI SHUI YIN

HCCC 29 & 234/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 29 AND 234 OF 2011

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BETWEEN

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REASONS FOR RULING

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The charge

1.  The 2^nd Accused Lai Shui Yin (the defendant) faced one charge of Manslaughter, contrary to common law and punishable under section 7 of the Offences Against the Person Ordinance, Cap 212.  The amended particulars of the offence read:

“LAI Shui-yin, on or about the 25^th day of October, 2009, in Hong Kong, together with KWONG Yuen-siu, unlawfully killed KWONG King-nam in that (i) having a duty of care towards KWONG King-nam both by virtue of her relationship with him and/or by accepting such a duty; (ii) breached that duty of care by failing to obtain proper and adequate medical care for the said KWONG King-nam; and (iii) that breach of duty caused the death of KWONG King-nam and was in all the circumstances grossly negligent.”

The prosecution case

2.  The prosecution case against the defendant was that after her son KWONG Yuen-siu (the other person named in the indictment) chopped and wounded his father KWONG King-nam, who was also her husband, the defendant was in breach of duty of care towards her husband in failing to obtain proper and adequate medical care for him, and as a result of such breach of duty the deceased died.  The defendant’s breach of duty of care amounts to gross negligence manslaughter.

The issue

3.  The issue I have to decide is what effect does the judgment of the Court of Final Appeal (“CFA”) in the case of HKSAR v Sin Kam Wah [2005] 2 HKLRD 375, in overruling the Court of Appeal’s decision in R v Chau Ming Cheong [1983] 1 HKC 68 (a case involving gross negligence manslaughter), have as regards the elements/ingredients the prosecution needs to prove before a jury can convict the defendant of the offence charged?

4.  It is common ground that with the overruling of the Chau Ming Cheong case, the elements/ingredients of the offence of gross negligence manslaughter as set out in the leading case of R v Adomako [1995] 1 AC 171 are applicable in Hong Kong except that, in relation to the test applicable for the issue of gross negligence, the prosecution and the defence differed.  

5.  Mr Wilson Chan for the defence submitted that as a result of the CFA’s decision in Sin Kam Wah, the test should not be an objective one, but should either be a subjective one or a two-tiered objective-subjective test — similar to the test of “dishonesty” in theft cases.

6.  Mr Patrick Loftus for the prosecution submitted, on the other hand, that Sin Kam Wah did not change the law and the elements/ ingredients of the offence of gross negligence manslaughter as set out in Adomako are applicable here, with the result that the test is an objective one, although the jury may take into account the defendant’s own state of mind in considering whether the breach of duty amounts to gross negligence.

7.  After considering the arguments with reference to the authorities, I am of the view that the effect of the CFA’s judgment in overruling Chau Ming Cheong is that the position in Hong Kong is different from that of the United Kingdom (“UK”).  The elements/ingredients of the offence of gross negligence manslaughter set out in Adomako are applicable, that is to say, the jury has to decide (1) whether the defendant has been in breach of a duty of care towards the deceased; (2) if such a breach of duty is established, whether that breach of duty caused the death of the deceased; and (3) if so, the jury must go on to consider whether that breach of duty should be characterized as gross negligence and therefore a crime. However, the test as to what would amount to gross negligence is not just an objective reasonable man test, but the prosecution must prove that the defendant’s subjective state of mind was culpable before she can be found guilty of this offence.

8.  I indicated to counsel that I would give my reasons in writing, which I now do.

The law

9.  The classic statement of gross negligence manslaughter is that of Lord Hewart LCJ in the case of R v Bateman (1925) 19 Cr App R 8 (at p 11):

“… [I]n order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.”

10.  This passage was approved by the House of Lords in Andrews v Director of Public Prosecution [1937] AC 576.  Lord Atkins said (at p 583):

“…The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degree of negligence: and a very high degree of negligence is required to prove before [manslaughter] is established. Probably of all the epithets that can be applied, ‘reckless’ most nearly covers the case…but it is probably not all-embracing, for ‘reckless’ suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction…”

11.  R v Stone and Dobinson (1977) 64 Cr App R 186 was one of the cases in which the jury direction was based on “recklessness”.  In that case Stone and his mistress Dobinson had elected to take care of Stone’s sister who was suffering from anorexia nervosa, refusing food and was mostly confined to her room.  The sister also refused to give the name of her doctor to Stone and Dobinson, and Stone was not able to get his own doctor to see her.  Dobinson had tried to wash the sister with the help of a neighbour.  The sister died some weeks later of toxaemia as a result of infected bed sores due to prolonged immobilization in bed and lack of food.  She would probably have survived if she had obtained medical care.  Stone and Dobinson were charged with manslaughter and the jury was directed to consider the circumstances in relation to each of the defendants according to their individual knowledge of the sister’s condition.  They were told that the prosecution must establish against each of the defendants that his or her conduct amounted to a “reckless disregard of the sister’s health and welfare”.  The jury convicted them of manslaughter.

12.  On appeal counsel argued that the prosecution had to prove against each defendant that he or she must have appreciated that there was a risk of death or serious injury.  This argument was rejected by the Court of Appeal.  Geoffrey Lane LJ said (at p 363 of the judgment):

“The duty which a defendant has undertaken is a duty of caring for the health and welfare of the infirm person. What the prosecution have to prove is a breach of that duty in such circumstances that the jury feel convinced that the defendant’s conduct can properly be described as reckless, that is to say a reckless disregard to the danger to the health and welfare of the infirm person. Mere inadvertence is not enough. The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.”

13.  One can see that although the Court of Appeal rejected counsel’s argument, both the objective and subjective test for determining the guilty intent were embraced in the passage cited.

14.  The decision of Stone was followed in the Hong Kong case of Chau Ming Cheong.  In that case the applicant and his wife were jointly charged with the murder of their daughter.  Their plea to manslaughter was accepted by the prosecution and approved by the court.  The applicant appealed against his conviction on the basis that the facts he admitted to were not sufficient to support a conviction of manslaughter.  The facts were that the victim was one of his twin daughters, who died as a result of multiple injuries inflicted by the mother.  The actual cause of death was peritonitis supervening upon rupture of the small intestine. There were no less than 148 external injuries — mainly bruises and abrasions of various sizes and descriptions — all over her body.  The prosecution based its case against the applicant on the basis that he connived at his wife’s unlawful behaviour by passively standing by and doing nothing to observe his duty as a parent to protect the child from assaults which he must have realized were wholly unjustified by reason of their frequency and severity or by taking any other reasonable steps to see that the welfare of his child was ensured.  The applicant argued that the injury which ruptured the child’s small intestine and caused her death was the result of some form of violence which wholly exceeded anything before the incident and that he could not be held responsible as it was not part of the agreed facts that he had been present as a witness to any such exceptional behaviour.

15.  In dismissing the application McMullin VP, who gave the main judgment of the court, to which Silke JA concurred, considered the judgment of Stone, in particular the fact that the argument advanced by Stone’s counsel in relation to the requirement of an appreciation by the defendant of the risk of death or injury before a conviction for manslaughter by omission or neglect would result was rejected on appeal.

16.  While noting that the passage in Stone (quoted in para 12 of this judgment) embraced both the subjective and objective test for determining guilty intent, McMullin VP went on to consider the then recent binding authority of R v Caldwell [1981] 1 All ER 961 and R v Lawrence [1981] 1 All ER 974 and found:

“… the recent authority … has decisively come down, in terms similar to those used in Stone, upon the side of objective consideration as constituting the test of criminal liability”.

17.  McMullin VP referred to the then latest edition of Archbold setting out the effect of all the consenting judgments:

“Recklessness on the part of the doer of an act presupposes that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section that created the offence was intended to prevent and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act he either fails to give any thought to the possibility of there being such a risk or, having recognized that there was such a risk, he nevertheless goes on to do it.”

18.  McMullin VP was of the view that although the word “reckless” occurred in a statutory provision in Caldwell and Lawrence, the opinions expressed in speeches in favour of the objective test view “employ the term with its normal connotations as a term of familiar speech” (p 77).

19.  McMullin VP then referred to the decision of R v Newbury (1976) 62 Cr App R 291, a manslaughter case, and noted Lord Salmon saying (at p 296):

“The test is still the objective test. In judging whether the act was dangerous, the test is not did the accused recognize that it was dangerous but would all sober and reasonable people recognize its danger.”

20.  McMullin VP also referred to another Hong Kong Court of Appeal decision of R v Lee Wang Fat & Another [1982] HKLR 133, where Li JA, giving the judgment of the court, said (at p 136):

“The count of manslaughter, however, at common law, as it now stands, requires gross negligence and recklessness depending on the standard of a reasonable man.”

21.  The effect of Chiu Ming Cheong is that a reckless disregard of the victim’s health and welfare on a defendant’s part amounted to manslaughter and the test is an objective one.

22.  The issues concerning whether “recklessness” was the proper basis for this category of manslaughter and whether the test was “Lawrence recklessness” eventually came before the House of Lords in the case of Adomako.

23.  Adomako was in fact one of four defendants in three unrelated cases that were consolidated and heard by the Court of Appeal in the UK: Sulman, Prentice, Adomako and Holloway [1994] QB 302.  Very briefly, Sulman and Prentice concerned two junior doctors who allegedly had given injection improperly, in breach of duty, causing death; Adomako concerned an anaesthetist who allegedly failed to notice the disconnection of a tube during an operation, in breach of duty, causing death; and Holloway concerned an electrician who allegedly wrongly installed electrical equipment, in breach of his duty, causing death.

24.  In Sulman and Prentice, the trial judge directed the jury using both gross negligence and a “Lawrence recklessness” direction, in Holloway, the trial judge directed in terms of “Lawrence recklessness”, and in Adomako, the trial judge directed the jury solely in terms of gross negligence.

25.  On appeal, the Court of Appeal was asked to determine whether the appropriate test in breach of duty cases is that of gross negligence or the test of “Lawrence recklessness”.  The Court of Appeal decided that apart from motor manslaughter cases, the proper test for manslaughter cases based on breach of duty is the gross negligence test established in Andrews and Stone, that is to say (1) the existence of a duty of care; (2) a breach of that duty causing death; and (3) gross negligence.

26.  The Court of Appeal, after observing that it would be impossible to prescribe a standard jury direction on gross negligence appropriate to all cases of breach of duty, said it would be open to the jury to find gross negligence on proof of any of the following non-exhaustive states of mind against the defendant:

(1) indifference to an obvious risk of injury to health;

(2) actual foresight of the risk coupled with the determination nevertheless to run it;

(3) an appreciation of the risk coupled with an intention to avoid it but also coupled with such a high degree of negligence in the attempted avoidance as the jury consider justifies conviction; and

(4) inattention or failure to advert to a serious risk which goes beyond “mere inadvertence” in respect of an obvious and important matter which the defendant’s duty demanded that the defendant should address.

27.  As “Lawrence recklessness” was included in the jury direction in Sulman and Prentice, and Holloway, the Court of Appeal quashed their convictions.  Since the jury in Adomako had been directed on gross negligence in terms of a high degree of negligence, and not on recklessness, his appeal was dismissed.

28.  On Adomako’s appeal to the House of Lords, Lord Mackay of Clashfern, LC, delivering the unanimous judgment of the court, re-affirmed gross negligence as the proper basis of manslaughter in breach of duty cases and dismissed the appeal.

29.  Lord Mackay referred to Bateman and Andrews and said (at p 187):

“… the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care toward the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether the breach of duty should be characterized as gross negligence and therefore a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.”

30.  After recognizing the element of circularity, Lord Mackay went on to say:

“… but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterized as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.”

31.  Lord Mackay thus answered the certified question as follows (at p 188):

“In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient direction to the jury to adopt the gross negligence test as set out by the Court of Appeal in the present case following [Bateman and Andrews] and that it is not necessary to refer to the definition of recklessness in [Lawrence] although it is perfectly open to the trial judge to use the word ‘reckless’ in its ordinary meaning as part of the exposition of the law if he deems it appropriate in the circumstances of the particular case.”

32.  It should be noted that the risk involved was not merely risk of danger to health or welfare of the victim (as in the case of Stone, adopted by the Hong Kong Court of Appeal in Chau Ming Cheong),but a risk of death.

33.  In Sin Kam Wah, a case concerning the offence of misconduct in public office, the CFA, while rejecting counsel’s submission in relation to the trial judge’s alleged misdirection as to the law of recklessness in light of the House of Lord’s decision in R v G & Another, nevertheless went out of its way to consider the consequences for the law of Hong Kong of the decision of R v G & Another and expressly overruled Chau Ming Cheong.

34.  Sir Anthony Mason NPJ, whose judgment was unanimously agreed by all other members of the Court, said (p 389):

“41. Although the submission [re recklessness] must be rejected for the reason just stated, it is desirable to consider the consequences for the law of Hong Kong of the decision in [R v G & Another]. Hitherto the Courts of Hong Kong have followed [R v Caldwell]. In [R v Chau Ming Cheong], the Court of Appeal followed [R v Caldwell and R v Lawrence],taking the principles to be that stated by Lord Diplock in [R v Lawrence] at p526EG as summarized in Archbold…”

35.  Sir Anthony Mason then set out the paragraph in Archbold which has already been cited in this judgment (para 17) and went on to say the same approach was taken in R v Dung Shue Wah [1983] 2 HKC 30 in relation to the meaning of “recklessness” in a rape trial.  The learned judge then said (paras 42 – 44 of the judgment):

“42. The view of recklessness adopted in [R v Caldwell] has been subjected to outspoken criticism not only by leading academic commentators, including Professor John Smith [1981] Crim LR 392 at pp.393-396 and Professor Glanville Williams in ‘Recklessness Redefined’ [1981] CLJ 252, but also by leading judges and practitioners: see [R v G & Another] at p.1056, per Lord Bingham of Cornhill. The principal point of the sustained criticism has been that the [R v Caldwell] view of recklessness ignored a fundamental principle of criminal culpability. Lord Bingham expressed the point (at p.1055C-D) in this way:

… it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable… The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if … one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.

43. Another serious point of criticism was that the model direction formulated by Lord Diplock was capable of leading to obvious unfairness, as it did at trial in [R v G & Another], because it could lead to the unjust conviction of a defendant on the strength of what someone else would have apprehended, although the defendant himself had no such apprehension; see [R v G & Another] at p.1055E-G.

44. Because these criticisms are soundly based, it is appropriate that this Court should take this opportunity of overruling [Chau Ming Cheong] and [Dung Shue Wah]. Henceforth juries should be directed in terms of the subjective interpretation of recklessness upheld in [R v G & Another]. So juries should be instructed that, in order to convict for an offence under s.118(3)(a) of the Crimes Ordinance, it has to be shown that the defendant’s state of mind was culpable in that he acted recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or in respect of a result if he was aware of a risk that it would occur, and it was, in the circumstances known to him, unreasonable to take the risk. Conversely, a defendant could not be regarded as culpable so as to be convicted of the offence if, due to his age or personal characteristics, he genuinely did not appreciate or foresee the risks involved in his actions.”

36.  Whilst Sir Anthony Mason was dealing with the issue of “recklessness”, by overruling Chau Ming Cheong, clearly it is no longer enough for the prosecution to prove “reckless disregard of the victim’s health and welfare” on the defendant’s part for a charge of manslaughter.  In any event, Adomako made it clear that the risk needs to be one of death. Whilst Adomako is not a binding authority, it is certainly a very persuasive one.  It also accords with justice and fairness that if a person were to be found guilty of such a serious offence as manslaughter in a breach of duty case, the risk should be one of death, and not merely risk of injury or even serious injury.

37.  Sir Anthony Mason said nothing about Adomako in Sin Kam Wah when overruling Chau Ming Cheong.  What then is the effect of the judgment of Sin Kam Wah on the law of manslaughter on the basis of breach of duty?

38.  Before turning to the different positions taken by the prosecution and the defence, it is perhaps useful to look at the position in the UK post R v G & Another.

39.  In R v Misra and Srivastava [2005] 1 Cr App R 21, 328, the defendants were convicted of gross negligence manslaughter.  They were senior house officers involved in the post-operative care of a patient who underwent a knee operation.  The patient became infected with staphylococcus aureus and was not treated for the condition.  The patient died of shock as a result of the toxic build up within his body.  The prosecution alleged that each of the defendants was in breach of their duty of care in failing to identify the infection requiring treatment and failing to take steps to ensure the patient received appropriate treatment.  Their breach of duty was alleged to amount to gross negligence.

40.  The arguments before the Court of Appeal centred on two grounds: (1) requiring the jury to determine whether a defendant’s conduct should be characterized as gross negligence failed to meet the standard of certainty required by the Convention of the Protection of Human Rights and Fundamental Freedoms; and (2) the offence contravened the essential principle that some element of mens rea was a necessary ingredient of all serious criminal offences.

41.  The Court of Appeal dismissed the appeal and rejected the uncertainty point.  The court adopted the test propounded in Adomako, adding that the risk involved was one of death, not bodily injury or injury to health (para 52).  The court also held that it was the gross negligence which provided the necessary element of culpability and therefore the mens rea for the offence.

42.  The Court of Appeal revisited the issue of whether gross negligence manslaughter should be replaced by reckless manslaughter after the decision of R v G & Another (the same argument was advanced in Adomako without the benefit of R v G & Another).  The Court of Appeal referred to Lord Bingham’s express emphasis in R v G & Another that he (Lord Bingham) was not addressing the meaning of “recklessness” in any other statutory or common law context other than section 1(1) and (2) of the Criminal Damage Act 1971 (the offence of arson).  The Court of Appeal rejected the argument.

43.  Judge LJ (delivering the judgment of the court) referred to an “associated contention” advanced by counsel for the defendant Misra and said (para 56):

“We can now reflect on [counsel’s] associate contention that if recklessness is not a necessary ingredient of this offence, the decision in Attorney General’s Reference (No. 2 of 1999) [2000] 2 CR. App. R. 207, [2000] QB 796 led to the unacceptable conclusion that manslaughter by gross negligence did not require proof of any specific state of mind, and that the defendant’s state of mind was irrelevant. In our judgment the submission is based on a narrow reading of the decision that a defendant may properly be convicted on gross negligence manslaughter in the absence of evidence as to his state of mind. However when it is available, such evidence is not irrelevant. It will often be a critical factor in the decision (see R (Rowley) v Director of Public Prosecution [2003] EWHC 693.) In Adomako itself, Lord Mackay directed attention to ‘all’ of the circumstances in which the defendant was placed: he did not adopt, or endorse, or attempt to redefine the list of states of mind to which Lord Taylor C.J. referred in Prentice, which was not in any event ‘exhaustive’ of possible relevant state of mind. It is therefore clear that the defendant is not to be convicted without fair consideration of all the relevant circumstances in which his breach of duty occurred. In each case, of course, the circumstances are fact-specific.

[Counsel for Misra] nevertheless contended that even so, the problem of mens rea remains. This, he argued was a necessary, but absent, ingredient of the offence. We have reflected, of course, that if the defendant intends death or really serious harm, and acts in such a way as to cause either, and death results, he would be guilty of murder. If he intends limited injury, and causes death, he would be guilty of manslaughter in any event. We are here concerned with the defendant who does not intend injury, but who in all the contemporaneous circumstances is grossly negligent as a matter of strict language, ‘mens rea’ is concerned with an individual defendant’s state of mind. Speaking generally, negligence is concerned with his failure to behave in accordance with the standards required of the reasonable man. Looked at that way, the two concepts are distinct. However, the term ‘mens rea’ is also used to describe the ingredient of fault of culpability required before criminal liability for the defendant’s action s may be established. In Sweet and Parsley (1969) 53 Cr.App.R.221, [1970] A.C.132, Lord Reid explained that there were occasions when gross negligence provided the ‘necessary mental element’ for a serious crime. Manslaughter by gross negligence is not an absolute offence. The requirement for gross negligence provides the necessary element of culpability.”

44.  Very briefly, A-G’s Reference (No 2 of 1999) concerned a train crash killing seven people and injuring many.  The (non-human) operator of the train was indicted for manslaughter.  The trial judge held that it was a condition precedent to a conviction for manslaughter by gross negligence for a guilty mind to be proved and where a non-human defendant was prosecuted it could only be convicted via the guilt of a human being with whom it could be identified.  No trial took place.  The Attorney General asked the Court of Appeal to consider, inter alia, “can a defendant be properly convicted of manslaughter by gross negligence in the absence of evidence as to that defendant’s state of mind?”  The Court of Appeal answered in the affirmative.

45.  Rose LJ said (at p809):

“Although there may be cases where the defendant’s state of mind is relevant to the jury’s consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a prerequisite to a conviction for manslaughter by gross negligence. The Adomako test is objective but a defendant who is reckless as defined in R v Stone may be more readily found to be grossly negligent to a criminal degree.”

46.  R (Rowley) v Director of Public Prosecution concerned the death by drowning of a profoundly disabled man.  The carer left him unattended in the bath.  The Director of Public Prosecution (“DPP”) refused to prosecute the carer or the authority for gross negligence manslaughter.  The man’s mother (the claimant) sought to persuade the DPP to bring prosecution.  The DPP considered the lack of awareness of risk on the part of the carer weighed against a finding of gross negligence and again refused to prosecute.  On the claimant’s application for judicial review, the issue was whether the carer’s state of mind was a factor which the jury might take into account in the carer’s favour when considering whether her conduct amounted to a criminal offence.  The court dismissed the application, ruling that subjective recklessness (actual foresight of risk) is not a pre-requisite for a conviction of gross negligence manslaughter.

47.  Further, Kennedy LJ also rejected the argument that the state of mind of the defendant should be considered irrelevant except to establish a prosecution case, but accepted that the jury could take into account the defendant’s state of mind in his favour (paras 33 – 39).

48.  In a nutshell, the state of law in relation to manslaughter on the basis of breach of duty in the UK is that as propounded in Adomako. Juries are not to be directed on recklessness, particularly “Lawrence recklessness”, in its legal sense, but judges are free to use this expression to emphasize the high degree of negligence required.  The test as to whether the breach amounts to gross negligence is an objective one.  The defendant’s subjective state of mind is not a pre-requisite to a conviction for manslaughter by gross negligence though the jury may take into account the subjective state of mind in assessing the grossness of the negligence.  The subjective state of mind of the defendant is not only relevant in helping to establish the prosecution case, but should be construed for as well as against the defendant.

49.  Having set out what I understand to be the current legal position in relation to the relevant law in the UK, I now turn to the arguments of the prosecution and the defence in this case.

The prosecution’s stance

50.  The prosecution’s stance is that the law applicable in Hong Kong is exactly the same as that applicable in the UK.  Since Adomako, for a case of manslaughter involving a breach of duty, the jury is not to be directed in line of “Lawrence recklessness”, but on the basis of gross negligence.  The effect of the CFA overruling Chau Ming Cheong is that Stone is no longer applicable and, that if recklessness is relied on by the prosecution, the test has to be in accordance with R v G & Another.  Since the present case does not involve any allegation of recklessness, the judgment of Adomako is applicable here.  The test is an objective one but the subjective state of mind of the defendant is relevant for the jury’s consideration in whether the negligence was gross.

The defendant’s stance

51.  The defence, on the other hand, placed heavy emphasis on the two paragraphs (42 and 43) of Sin Kam Wah and submitted that the underlying principle was that a conviction of a serious crime should depend not only on what the defendant had done (actus reus), but whether the defendant’s state of mind (mens rea) was culpable.  By adopting the gross negligence test propounded in Adomako, a person who genuinely did not perceive a risk of death could still be found guilty of manslaughter on a reasonable man test — even when a jury is directed to consider the defendant’s subjective state of mind.

52.  Mr Chan submitted that the court should look beyond the label of “recklessness” and address the underlying principle for the decision of R v G & Another.  It would be unjust to convict a defendant on the strength of what someone else would have apprehended when the defendant herself had no such apprehension.

My decision

53.  In coming to my decision, I take into account the fact that — unlike the courts in the UK — the CFA in Sin Kam Wah extended R v G & Another beyond cases involving arson and expressly overruled Chau Ming Cheong.  There was no discussion by the CFA about Adomako or whether recklessness is no longer a fault element in gross negligence manslaughter cases.  There is certainly no discussion in relation to the issue of “subjective recklessness” as proposed by academics and lawyers in the UK after R v G & Another.  There is no way of knowing, had the CFA considered Adomako, whether it would have come to the same conclusion as the courts in the UK.

54.  Whilst it is possible to argue that the effect of overruling Chau Ming Cheong is to overturn Stone in relation to the notion that reckless disregard to the health and welfare of the victim was sufficient for a conviction of gross negligence manslaughter, and to overrule the Court of Appeal’s decision on the applicable test of recklessness (i.e. an objective test), I think that is too narrow a view to be taken.  I agree with Mr Chan that the underlying principle expressed by Lord Bingham in R v G & Another and soundly approved by the Court of Appeal in Sin Kam Wah is of importance here. Whether the term recklessness is used or not, the jury has to decide whether there was a serious and obvious risk of death in all the circumstances and whether what the defendant has done or failed to do amounts to gross negligence.  If the test is an objective reasonable man test (i.e. the circumstances were such that a reasonably prudent person would have foreseen a serious and obvious risk of death), then even with a direction to the jury to the effect that the state of mind of the defendant should be taken into consideration for as well as against her, one cannot exclude the possibility that a jury may find the defendant grossly negligent on an objective view even when the defendant genuinely did not appreciate there was a serious and obvious risk of death.

55.  The law should not be such that a person who genuinely did not perceive a serious and obvious risk of death should be exposed to conviction of such a serious crime as manslaughter on the strength of what someone else would have appreciated.

56.  For these reasons, even though the relevant English authorities are persuasive, I decline to follow them in relation to the test to be applied.  Instead, it is my ruling that the position in Hong Kong is different from that in the UK.  It is not enough for the prosecution to simply rely on the objective reasonable man test — with the judge directing the jury to take into consideration the subjective state of mind of the defendant, both for and against the defendant — the prosecution has to prove that the defendant was subjectively aware of the obvious and serious risk of death to the deceased in order to establish manslaughter on the basis of breach of duty in this case.

57.  The specimen direction for gross negligence manslaughter are as follows:

“Before you may convict the defendant of the offence of manslaughter by reason of gross negligence in respect of [count 1] on the indictment you must be satisfied so that you are sure of the following ingredients:

(1) that the defendant owed a duty of care to the victim;

(2) that the defendant was in breach of that duty of care;

(3) that the breach of the duty of care caused the death of the victim; and

(4) that the breach of the 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 so that you, the jury, consider the defendant’s action justify a criminal conviction.

It is for you to decide which facts you find proved: whether or not there was a duty of care owed by the defendant to the victim; whether or not there was a breach of that duty of care by the defendant; whether or not that breach caused the death of the victim and whether or not a breach of the duty of care owed by the defendant to the victim constituted gross negligence that justifies a criminal conviction.”

58.  Both the prosecution and the defence agreed that the specimen direction could be used with suitable amendment.  Clearly, in view of my ruling, ingredient (4) needs to be amended.  Whether ingredient (4) should be amended to reflect just a subjective test, or a two-tiered objective-subjective test will, to a large extent, depend on the evidence to be adduced.  I will wait until I have the opportunity to hear submissions from counsel — before I sum up the case to the jury — to decide on the appropriate wordings to be adopted.