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Hksar v Lai Chun Ho

Judgment Cited authorities 12 Cited in Precedent Map Related
Vincent
Judgment Date08 March 2018
Neutral Citation[2018] HKCFI 458
Year2018
Judgement NumberHCCC213/2016
Subject MatterCriminal Case
CourtCourt of First Instance (Hong Kong)
HCCC213/2016 HKSAR v. LAI CHUN HO

HCCC 213/2016

[2018] HKCFI 458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 213 OF 2016

________________________

BETWEEN
HKSAR

and
LAI Chun-ho Defendant

________________________

Before: Hon Barnes J in Court
Date of Hearing: 7 February 2018
Date of Decision: 8 March 2018

________________________

DECISION

________________________

1. The defendant faces three counts of Gross Negligence Manslaughter (GNM) in connection with a liquefied petroleum gas (LPG) taxi explosion at a garage in Wong Tai Sin on 26 April 2015, killing the owner of the garage, the taxi driver and a woman in the adjacent shop. The prosecution’s case against the defendant was that the explosion occurred as a result of the defendant doing work on the LPG tank of the taxi when he was not qualified to do so. It is alleged that by the defendant’s gross negligence in failing to take sufficient steps, among others, to ensure that there would be no leakage or accumulation of LPG from the fuel tank of the LPG taxi, the defendant unlawfully killed the three victims.

2. A preliminary issue I have to decide is whether, for an offence of GNM in Hong Kong (HK), it is sufficient for the prosecution to prove all the elements in accordance with the guidelines enunciated in R v Adomako [1995] 1 AC 171: ie

(1) the existence of a duty of care by the defendant to the deceased;

(2) breach of that duty by the defendant;

(3) the breach of the duty by the defendant caused the death of the deceased; and finally

(4) the breach of the duty by the defendant being capable of being characterised as gross negligence and therefore a crime (the last element),

with the last element to be proved on the basis of an objective reasonable man test – as submitted by the prosecution; or that the test is a subjective one, as submitted by the defence.

3. I have already decided, in the case of HKSAR v Lai Shui Yin [2012] 2 HKLRD 639, that in relation to the last element, the test for gross negligence was not only an objective reasonable man test, but the prosecution was also required to prove that the defendant’s state of mind was culpable. In a more recent case of HKSAR v Chow Heung Wing, Stephen and Others, unrep. (HCCC 437/2015), I was invited by the prosecution to re‑visit my decision in Lai Shui Yin, submitting that two cases of the Court of Appeal (CA): (1) Secretary for Justice v Law Siu Kuen [2011] 1 HKLRD 1022 (decided before Lai Shui Yin); and (2) HKSAR v Ngai Hon Kwong [2016] 2 HKLRD 149 (decided after Lai Shui Yin) demonstrated that the proper application of Adomako (ie with the objective reasonable man test for the last element) has been adopted in Hong Kong. I ruled against the prosecution and confirmed my earlier ruling in Lai Shui Yin.

4. In the present case, the prosecution, represented by Mr Jonathan Man, Senior Assistant Director of Public Prosecutions and Mr Anthony Chau, Senior Public Prosecutor, again invited me to re‑visit this issue. The prosecution framed the issue as follows:

“For an offence of manslaughter by gross negligence, should the gross negligence referred to in the last element of the offence as enunciated in R v Adomako [1995] 1 AC 171, namely ‘the breach of the duty by the defendant being capable of being characterized as gross negligence and therefore a crime’ (‘the last element’), be proved based on the objective reasonable man test only (as held in Adomako, Secretary for Justice v Law Siu Kuen [2011] 1 HKLRD 1022 and HKSAR v Ngai Hon Kwong [2016] 2 HKLRD 149) 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 (as held in HKSAR v Lai Shui Yin [2012] 2 HKLRD 639 and HKSAR v Chow Heung‑wing, Setphen & Ors, unrep., HCCC 437/2015?”

Submission of the prosecution

5. The prosecution submitted that in relation to the last element of the offence of GNM as identified in Adomako, the proper test to be applied should be an objective reasonable man test only. The defendant’s foresight of the relevant risk of death is not an ingredient of GNM. It is simply a factor to take into account when considering whether the defendant was grossly negligent in relation to the killing.

6. In support of this proposition, the prosecution’s principal arguments are as follows:

(a) The effect of Sin Kam Wah[1] overruling R v Chau Ming Cheong[2] is that Caldwell/Lawrence reckless direction was no longer applicable and that if recklessness was relied on by the prosecution, the test had to be in accordance with R v G[3]; as far as the law on GNM is concerned, the Court of Final Appeal (CFA) did not impose an additional requirement that the prosecution must prove the defendant’s state of mind was culpable;

(b) The post‑R v G GMN cases did not follow the “salutary principle” as discussed in R v G;

(c) This Court should follow the Court of Appeal decisions in Ngai Hon Kwong and Law Siu Kuen.

Effect of the CFA decision in Sin Kam Wah

7. The prosecution referred to the case of Sin Kam Wah and submitted that whilst the CFA extended the principles established in R v G beyond cases involving arson and expressly overruled Chau Ming Cheong (a manslaughter case) and Dung Shue Wah[4] (a rape case) where both cases turned on the issue of recklessness, the emphasis of the CFA was to make it clear that in relation to the issue of “recklessness”, the correct test to be applied was the one laid down in R v G as opposed to Caldwell/Lawrence. There was no discussion by the CFA about Adomako or whether recklessness is no longer a fault element in GNM. The CFA did not make any ruling that the prosecution must prove that the defendant was subjectively aware of the relevant risk in order to establish manslaughter on the basis of breach of duty. There is nothing in Sin Kam Wah to show that GNM must require the R v G brand of recklessness.

The post-R v G cases

8. The prosecution submitted that if the criminal culpability principle set out in R v G cases is meant to apply to GNM, making subjective recklessness a fault element, one would expect the courts post‑R v G to follow this approach. However, the authorities such as R v Misra and Srivastava [2005] 1 Cr App r 21, R v Alan James Mark Nationwide Heating Services Ltd [2004] EWCA Crim 2490, and R v Rose (Honey) [2017] EWCA Crim 1168 suggested otherwise.

9. In the present case, the prosecution also drew support from two Australian cases: R v Lavender (2005) 222 CLR 67 and Patel v The Queen (2012) 247 CLR 531.

10. In Lavender, the High Court of Australia, when considering the issue of malice in a case of involuntary manslaughter by criminal negligence, held (at p 87 in para 60):

“Counsel for the respondent in this Court attempted to persuade the Court that Nydam v The Queen should not be followed, and that manslaughter by criminal negligence requires a subjective appreciation by the offender that the conduct engaged in is unsafe. This would bring this form of involuntary manslaughter into disconformity with the other form of involuntary manslaughter dealt with in Wilson v The Queen. Furthermore, it is erroneous in principle. This branch of the criminal law reflects the value placed by the law upon human life. Giles JA was right to say, in the present case, that ‘appreciation of risk is not necessary for a sufficiently great falling short of the objective standard of care, and .... the law would be deficient if grossly negligent conduct causing death could not bring criminal punishment unless the accused foresaw the danger.” (Emphasis added)

11. In Patel, the High Court of Australia, in considering the test of criminal negligence, held (at p 556 in paras 87 and 88):

“87. Because of the value of the law places upon human life, it punishes grossly or criminally negligent conduct which causes death or grievous bodily harm, and it does so regardless of the subjective intentions of the accused or the accused’s appreciation of risk involved in his or her conduct.

88. The test applied to conduct which is alleged to amount to gross or criminal negligence in the context of the crime of manslaughter, or grievous bodily harm, is an objective one .... The test does not require that an accused have an appreciation of, or an indifference to, the risk created by the conduct in question. The only criterion necessary is an intention to do the act which inadvertently causes death or grievous bodily harm.” (Emphasis added)

12. The prosecution also relied on what was said by the learned author in an article “Reckless Manslaughter” in [2017] Crim L R 763 (at p 776 in para 2):

“Furthermore, things had moved on beyond Lawrence/Seymour with the House of Lord’s decision in Adomako. Thus it is defensible (in the doctrinal sense) for the courts to view G as having no bearing on the understanding of ‘recklessness’ adopted in GNM. As a matter of theory, it would be preferable if mens rea words such as recklessness were used consistently in the criminal law (and the language of recklessness simply dropped in this context, in favour of gross negligence), but there is no doctrinal necessity for the courts to conclude that manslaughter must now require G’s brand of recklessness. It would be better – if this approach is to be persisted in – to explain that the case for a finding of gross negligence is strengthened where the defendant was aware of the risk of death (or serious?) injury attaching to her conduct, and eschew talk of recklessness...

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