HKSAR v. CHOW HEUNG WING, STEPHEN

CACC 5 /2018

[2022] HKCA 313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 5 OF 2018

(ON APPEAL FROM HCCC NO 437 OF 2015)

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D E C I S I O N

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Hon Macrae VP (giving the Decision of the Court):

1.  On 4 November 2021, we handed down our Judgment and the reasons therefor in respect of the appeals against conviction and sentence of Chow Heung Wing, Stephen (“D1”) and Chan Kwun Chung (“D2”). In so doing, we refused D1 and D2’s applications for leave to appeal against conviction and dismissed their appeals, but granted leave to appeal against sentence and allowed their appeals to the extent of reducing their respective sentences from 12 years’ to 10 years’ imprisonment and 10 years’ to 8 years’ imprisonment. D1 alone now applies to certify five points of law of great and general importance, which are said to be involved in our decision, pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap 484.

2.  The five points of law, as set out in D1’s Notice of Motion dated 9 November 2021, are as follows:

“1.  In cases of Gross Negligence Manslaughter (in which a convicted defendant could face life imprisonment) is it necessary to establish that an individual defendant assumed personal responsibility for the actions by third parties employed by a company controlled by him that were the substantial cause of death or is the relevant breach of duty to be assessed only by reference to whether the individual was in effective control, or a “hands-on” boss of the company?

2  In cases in which a co-defendant cross-examines another defendant by putting a bare assertion which completely undermines the latter’s defence, which is denied and in respect of which the co-defendant chooses not to testify and there is no other evidence capable of supporting such assertion - au contraire the evidence overwhelmingly suggests otherwise:

a.  Should the Trial Judge permit the prosecution to pursue the same assertion in cross-examination and later in closing as part of the prosecution case?

b.  Should the Trial Judge direct the jury in terms to ignore that assertion in the case of the Defendant against whom it was made?

3.  In Gross Negligence Manslaughter, where a breach of a personal duty of care is established, must the jury be directed to discount what the defendant should have known but for his breach of duty, in assessing whether the defendant objectively foresaw serious and obvious risk of death?

4.  In relation to the element of “truly exceptionally bad” conduct is such conduct limited to the circumstances of the proven breach or can other unrelated misconduct also be taken into account?

5.  Where a defendant is unaware of a serious and obvious risk of death, [in this case because D1 honestly believed that proper screening and bacterial testing was being performed] is his subjective belief relevant to any of the ingredients of Gross Negligence Manslaughter? How should a trial judge direct the jury?” (original square brackets)

3.  We have received full written submissions from Mr Graham Harris SC, with him Ms Yasmin Zahir, for D1; and from Raymond Leung SC, with him Ms Margaret Lau and Mr Eric Tsoi, for the respondent. Both sets of counsel were involved for the same parties at the appeal before this Court. Neither party objects to this matter being addressed on the papers without the need for an oral hearing.

4.  The written Judgment of this Court on the appeal was very lengthy. We shall try to avoid engaging in a second Judgment on the merits of what appear to us to be the same arguments which were mounted at the appeal.

5.  In our view, the 1^st point of law simply does not arise on the facts of the case. Having summarised the voluminous evidence generated by an 8-month trial, which we made clear was limited to that necessary to deal with the arguments before us but did not mean there was no other relevant evidence[1], we described Mr Harris’s “assumption of responsibility” argument as a “red herring”[2], which had not in any event been run at trial. Rather, this was a case to which the established principles founded upon Donoghue v Stevenson[3] applied[4]. Whilst not wishing to engage in further argument on the point, we observe that the principle was succinctly explained by Hobhouse LJ (as Lord Hobhouse of Woodborough then was) in Perrett v Collins & Ors[5], which is relied upon by Mr Leung, but which was not cited to us at the appeal:

“Where the plaintiff belongs to a class which either is or ought to be within the contemplation of the defendant and the defendant by reason of his involvement in an activity which gives him a measure of control over and responsibility for a situation which, if dangerous, will be liable to injure the plaintiff, the defendant is liable if as a result of his unreasonable lack of care he causes a situation to exist which does in fact cause the plaintiff injury.

…

Once proximity is established by reference to the test which I have identified, none of the more sophisticated criteria which have to be used in relation to allegations of liability for mere economic loss need to be applied in relation to personal injury, nor have they been in the decided cases.”

6.  Given, as we described, “the overwhelming nature of the evidence against D1 as a “hands-on boss” in respect of every detail of the CIK treatment”[6], who “was involved intimately and personally with [the companies concerned] at almost every level of their functions”[7], we cannot see how this 1^st point of law is of any application to this case.

7.  In respect of the 2^nd point of law, our Judgment has already taken issue with the assumptions underlying the notion that D2’s cross-examination “completely undermine(d)” D1’s defence, or that the evidence “overwhelmingly suggest(ed)” the contrary of the assertion. Furthermore, it should not be forgotten that there were five allegations of breach of duty dealing with D1’s introduction of an experimental and intrinsically dangerous treatment to the market where there was no safe system in existence. Although Mr Harris deftly tried to make the appeal all about the failure to conduct sterility tests, which if they were not being conducted was entirely the fault of D2 and had nothing to do with D1, that was not the limit of the prosecution case. But even if it were, we have already set out our damning conclusions on the evidence as to the grossness of the negligence involved[8].

8.  This same misconception belies the 3^rd point of law, since the prosecution case was not all about what D1 should have known in respect of sterility tests. The charge and the case was far wider than that: it was about the failure of D1 as the person intimately involved with the marketing, preparation and administration of CIK treatment to the deceased to have in place a safe system when dealing with an obviously dangerous product; dangers of which D1, as a medical practitioner himself, must have been aware.

9.  In respect of the 4^th point of law, the incidents of failure to take reasonable care for the safety of the deceased were, as we held in our Judgment[9], in themselves “quite appalling”, irrespective of the matters about which Mr Harris complains and which are said to be unrelated. We did not accept that they were unrelated, but they rather paled into insignificance against the other matters on which the element of grossness was reliant. With respect, this is a very small point in the context of an overwhelming case.

10.  Finally, as to the 5^th point of law, we agree with Mr Leung that this is a matter of fact dressed up as a point of law, which invites the Court of Final Appeal to address a hypothetical question based on facts which have been assumed in D1’s favour, but which this Court did not accept. Nor, in our view, did the jury, since the judge had given the jury an extremely favourable direction on the question of subjective knowledge which was not, with respect, correct: see HKSAR v Mak Wan Ling (No 2). In short, this question simply does not arise.

11.  For the above reasons, we refuse to grant a certificate on any of the questions advanced.