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CAQL 1/2018
[2018] HKCA 858
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
RESERVATION OF QUESTION OF LAW NO 1 OF 2018
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IN THE MATTER of HCCC 213/2016 |
| BETWEEN |
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HKSAR |
Prosecution |
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and |
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Lai Chun Ho (黎駿豪) |
Defendant |
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AND IN THE MATTER of HCCC 437/2015 |
| BETWEEN |
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HKSAR |
Prosecution |
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and |
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Mak Wan Ling (麥允齡) |
3rd Defendant |
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Before: Hon Macrae VP, McWalters JA and Poon JA in Court
Dates of Hearing: 18 & 19 October 2018
Date of Judgment: 16 November 2018
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J U D G M E N T
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Hon Macrae VP (giving the Judgment of the Court):
A. Introduction
A.1 The Question of Law
1. On 31 May 2018, the cases of HCCC 213/2016 and HCCC 437/2015 were ordered to be consolidated for the purpose of considering a common Question of Law, each of which had been referred to this Court by Barnes J, pursuant to section 81(1) of the Criminal Procedure Ordinance, Cap 221[1].
2. The Question of Law reserved is as follows:
“In the offence of manslaughter by gross negligence, should the gross negligence referred to in the last element[2] of the offence as enunciated in R v Adomako [1995] 1 AC 171[3], namely ‘the breach of the duty by the defendant being capable of being characterised as gross negligence and therefore a crime’ be proved based on the objective reasonable man test only or that in addition to the objective reasonable man test, the prosecution is also required to prove that the defendant’s subjective state of mind was culpable in that the defendant was subjectively aware of the obvious and serious risk of death to the deceased?”
3. The Question of Law has arisen because of views expressed in rulings given by Barnes J in HCCC 213/2016 and HCCC 437/2015 as to the fault element of the offence of gross negligence manslaughter in the wake of two authorities; namely, R v G and Another[4],a case of arson, where the House of Lords held that the subjective recklessness of the appellants had to be shown[5]; and Sin Kam Wah & Another v HKSAR[6], a case involving the common law offence of misconduct in public office, as well as offences under the Crimes Ordinance, Cap 200 and the Prevention of Bribery Ordinance, Cap 201, where the Court of Final Appeal overruled two earlier Court of Appeal decisions[7] on the basis that the ratio of each decision was inconsistent with the decision in G and Another. Although the prosecution argues that there is nothing in Sin Kam Wah or any other authority to suggest that G and Another should be extended to the offence of gross negligence manslaughter, the defence contend that the sentiments expressed by Lord Bingham of Cornhill in G and Another, concerning what he termed the “salutary principle” that a culpable state of mind should be proved in serious crimes[8], should be of general application to all criminal offences including gross negligence manslaughter; even though it is accepted that in none of the cases which followed it in England and Wales has G and Another been held to have had any impact on the law of gross negligence manslaughter.
4. It should be noted that prior to her reservation of the question of law, Barnes J had ruled against the prosecution on the same issue in three previous trials involving offences of gross negligence manslaughter, during which she gave detailed reasons for her decision[9]. Essentially, she has consistently held that the test in respect of the fault element for gross negligence manslaughter is not simply that of objective foreseeability by the reasonable man, but that the prosecution was also required to prove that the defendant’s subjective state of mind was culpable.
5. Although these are consolidated proceedings, the prosecution is the applicant in HCCC 213/2016, whilst the defendant is the applicant in HCCC 437/2015. The defendants in both proceedings are awaiting trial (or, in respect of HCCC 437/2015, a retrial) on an indictment alleging manslaughter. It will be convenient, therefore, for the purposes of this judgment, if we refer to the respective parties as the prosecution and the defendants. For the purpose of these proceedings, the prosecution was required to state the facts which it hopes to prove in each case. It goes without saying that these facts have not yet been proved at trial; nevertheless, they provide the background against which each application is made. However, since the trials are yet to take place, we shall refrain so far as possible from commenting upon the facts of either case.
A.2 Facts to be proved in HCCC 213/2016
6. Lai Chun Ho (“Lai”), the defendant in HCCC 213/2016, is charged with three counts of manslaughter, contrary to common law and punishable under section 7 of the Offences against the Person Ordinance, Cap 212. It is alleged that on 26 April 2015, in a garage in Wong Tai Sin, Kowloon, he was doing work without any qualification on the liquid petroleum gas (“LPG”) tank of a taxi. In the course of such work, the defendant (i) failed to take sufficient steps to ensure that there would be no leakage or accumulation of LPG from the fuel tank of the taxi; and/or (ii) failed to take sufficient steps to ensure that should such leakage of LPG occur, it would not be ignited. As a result of the leakage and accumulation, a large explosion occurred causing the deaths of three people: the driver of the taxi, the owner of the garage and the wife of the owner of the adjoining shop premises.
7. On 23 March 2018, Lai pleaded not guilty to all three counts of manslaughter before Barnes J. The judge was then invited by the prosecution to reserve the Question of Law to this Court. There being no objection from the defence, Barnes J made the appropriate order. Accordingly, the trial dates initially fixed for 12 June to 14 July 2018 were duly vacated. No new trial dates have been fixed, pending this judgment.
A.3 Facts to be proved in HCCC 437/2015
8. Mak Wan Ling (“Mak”), the third defendant in HCCC 437/2015, was charged with one count of manslaughter. She is, and was at the material time, a registered medical practitioner. The prosecution alleges that her patient died after receiving a blood product, which was marketed by the companies of the first defendant (“D1”), produced by the second defendant (“D2”), a laboratory assistant in the employment of D1, and administrated by Mak to the deceased. It is said that Mak abused the trust placed in her by her patient, the deceased, and exploited her ignorance. In breach of her duty of care to the patient, Mak was grossly negligent in that she failed to ensure that the related therapy had been properly tested for viral and bacterial contamination beforehand, as well as documented prior to administration. Not only did the blood product injected into the deceased not come from an accredited laboratory, but the benefits of this type of therapy were unproven. It is also alleged that the deceased had not been fully informed of the risks involved in the proposed treatment.
9. After a trial (which included D1, D2 and Mak), the jury was unable to reach a verdict on the count against Mak and the prosecution therefore sought a re‑trial on dates yet to be fixed. In the light of the prosecution application in HCCC 213/2016, the defence applied to join the argument and, accordingly, the two applications were consolidated before this Court.
A.4 Sin Kam Wah & Another v HKSAR[10]
10. The question to be determined for present purposes is whether it is sufficient for the prosecution to prove the fault element of gross negligence manslaughter on a reasonable man test of objective foreseeability only, or whether a culpable subjective state of mind is also required to be shown. Given the reasons which have led to this issue, it is relevant to remind ourselves of what it was the Court of Final Appeal had to say in the case of Sin Kam Wah.
11. The allegations in Sin Kam Wah did not involve any offence of manslaughter: the offences charged were misconduct in public office, as well as offences under the Crimes Ordinance and the Prevention of Bribery Ordinance. In dismissing the appeals of the two appellants, the Court of Final Appeal went on to discuss the impact of G and Another when considering a question relating to reckless misconduct in the context of an offence of “exercising control over other persons with a view to their prostitution”[11]. It is worth reciting the relevant passages in the judgment of Sir Anthony Mason NPJ, with whom other members of the Court agreed:
“41. …it is desirable to consider the consequences for the law of Hong Kong of the decision in R v G & Another [2004] 1 AC 1034. Hitherto the Courts of Hong Kong have followed R v Caldwell [1982] AC 341[12]. In R v Chau Ming Cheong [1983] HKC 68[13], the Court of Appeal followed R v Caldwell and R v Lawrence [1982] AC 510[14], taking the principle to be that stated by Lord Diplock in R v Lawrence at p.526E-G as summarized in Archbold: Criminal Pleading, Evidence and Practice (41st ed., 1982) p.1008 paras. 17‑25 as follows:
“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,...
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