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Hksar v Mak Wan Ling

Judgment Cited authorities 3 Cited in 1 Precedent Map Related
Vincent
Judgment Date22 March 2019
Neutral Citation[2019] HKCFA 11
Judgement NumberFAMC66/2018
Citation(2019) 22 HKCFAR 51
Year2019
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FAMC66/2018 HKSAR v. MAK WAN LING

FAMC No. 66 of 2018

[2019] HKCFA 11

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 66 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CAQL NO. 1 OF 2018)

_______________________

BETWEEN
HKSAR Respondent
and
MAK WAN LING (麥允齡) (D3) Applicant

_______________________

Appeal Committee: Chief Justice Ma, Mr Justice Fok PJ and Mr Justice Cheung PJ
Date of Hearing and Determination: 21 March 2019
Date of Reasons for Determination: 22 March 2019

_______________________________

REASONS FOR DETERMINATION

_______________________________

Mr Justice Fok PJ:

1. After hearing the parties, we were satisfied that leave to appeal should be granted in respect of the following question of law, namely:

“In the 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 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?”

2. Since, however, the application involved a question of jurisdiction, we indicated that we would hand down our reasons in due course, which we now do.

The jurisdiction issue

3. The jurisdiction issue in the present application arises because the judgment of the Court of Appeal leading to the present application[1] was a judgment on a reference to it on a point of law pursuant to section 81 of the Criminal Procedure Ordinance.[2] Section 81 gives a trial judge in a criminal matter a power to reserve a question of law for the Court of Appeal.

4. The criminal jurisdiction of the Court of Final Appeal is set out in section 31 of the Hong Kong Court of Final Appeal Ordinance, [3] which provides:

“An appeal shall, at the discretion of the Court, lie to the Court in any criminal cause or matter, at the instance of any party to the proceedings, from –

(a) any final decision of the Court of Appeal;

(b) any final decision of the Court of First Instance (not being a verdict or finding of a jury) from which no appeal lies to the Court of Appeal.”

5. The question in the present application is whether the Court of Appeal’s judgment, arising as it did on a reference to it on a point of law pursuant to section 81 of the CPO, is a final judgment within section 31 of the HKCFAO.

6. The underlying criminal prosecution concerns a doctor charged with manslaughter in relation to her treatment of a patient who died after receiving a blood product. At the trial before Barnes J,[4] the jury was unable to reach a verdict in respect of the charge against the applicant and the prosecution has sought a re-trial on dates to be fixed. The re-trial was to have proceeded on the basis of the judge’s ruling dated 14 June 2017[5] that the test for gross negligence manslaughter is not just one of objective foreseeability of the risk of death but that the prosecution also needs to prove that the defendant was subjectively aware of that risk.

7. In another unrelated case, [6] Barnes J followed her ruling in this case as regards the test for gross negligence manslaughter but, on the prosecution’s application, had reserved the point of law arising from her ruling to the Court of Appeal under section 81 of the CPO. In the light of that reference, the applicant in the present case then applied to join the proceedings referred to the Court of Appeal. Following a consolidated hearing, the Court of Appeal handed down its judgment on 16 November 2018.[7]

8. The conclusion of the Court of Appeal on the point of law was that Barnes J’s ruling was wrong. Macrae VP, giving the judgment of the court, said at [67]:

“In conclusion, our answer to the Question of Law reserved is that ‘the breach of the duty by the defendant being capable of being characterised as gross negligence and therefore a crime’ is to be proved on the objective reasonable man test only, in accordance with the terms of this judgment. The prosecution is not required to prove that the defendant was subjectively aware of the obvious and serious risk of death to the deceased. Accordingly, the proper direction in each case should be based upon that set out in Direction 63A of the Hong Kong Judicial Institute’s Specimen Directions in Jury Trials.”

9. In its judgment certifying the point of law for this Court, the Court of Appeal recognised that the point arising on the jurisdiction issue was not “at all clear-cut” since its judgment was “effectively in response to an interlocutory application on a question of law pursuant to section 81”.[8]

10. Before the Court of Appeal, the respondent’s stance was that it was reasonably arguable that the decision of Barnes J, albeit interlocutory on a question of law, was susceptible of an appeal to the Court of Final Appeal. The respondent now goes further and expressly does not dispute that the Court of Appeal’s decision on the question of law reserved under section 81 is susceptible to an appeal to the Court of Final Appeal.[9]

11. In our view, the judgment of the Court of Appeal is properly to be regarded as a final judgment for the purposes of section 31 of the HKCFAO.

12. In construing what is a final judgment in section 31 of the HKCFAO, it is appropriate to apply the approach adopted...

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1 cases
  • Hksar v Mak Wan Ling
    • Hong Kong
    • Court of Final Appeal (Hong Kong)
    • 18 October 2019
    ...Procedure Ordinance (Cap 221). [3] Macrae VP, McWalters and Poon JJA [2018] HKCA 858 (16 November 2018). [4] Ma CJ, Fok and Cheung PJJ [2019] HKCFA 11 (22 March 2019). [5] [1995] 1 AC 171. [6] [2012] 2 HKLRD 639. [7] HCCC 437/2015, §8. Emphasis in the original. ...

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