HKSAR v. CHOW HEUNG WING,STEPHEN AND OTHERS

HCCC 437/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 437 OF 2015 BETWEEN HKSAR and CHOW Heung-wing, Stephen 1st Defendant CHAN Kwun-chung 2nd Defendant MAK Wan-ling 3rd Defendant Before: Hon Barnes J in Court Date of Hearing: 9 June 2017 Date of Decision: 13 June 2017 Date of Handing Down of the Reasons for Decision: 14 June 2017 REASONS FOR DECISION (on mens rea for GNM) One of the preliminary issues I have to decide is whether, for an offence of gross negligence manslaughter (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 the existence of a duty of care by the defendant to the deceased; breach of that duty by the defendant; the breach of the duty by the defendant caused the death of the deceased; and finally 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 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, the prosecution invited me to revisit 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. The prosecution submitted that as those two CA decisions are binding on this Court, I have to rule in accordance with the two CA judgments and have to, in effect, overrule my own decision in Lai Shui Yin. The prosecution’s contention was strongly opposed or objected to by counsel for all three defendants, who, in effect, submitted that my decision in Lai Shui Yin was a correct one, and that decision was not affected by the two CA cases relied upon by the prosecution. After consideration of the submissions, both written and oral, I ruled that the test to be applied for the last element in this case is the same as that decided in Lai Shui Yin. I indicated at the time that I will hand down my reasons. This I now do. What was decided in Lai Shui Yin? I think it useful to recap, briefly, what was decided in Lai Shui Yin. In Lai Shui Yin (a case involving GNM), an issue arose as to the effect of the judgment of the Court of Final Appeal (CFA) in Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192 (a case involving Misconduct in Public Office) in overruling the CA’s decision in R v Chau Ming Cheong [1983] HKLR 187 (a case of GNM) in relation to the elements of GNM. After considering a number of authorities, including the case of Adomako and other English authorities, I came to the conclusion that the effect of such an overruling by the CFA was that the positon in HK is different from that of the United Kingdom (UK). I ruled that the elements/ingredients of the offence of GNM set out in Adomako are applicable, meaning that the jury has to decide (1) whether the defendant has been in breach of a duty of care towards the deceased; (2) whether that breach caused the death of the deceased; and (3) whether that breach of duty should be characterised as gross negligence and therefore a crime. However, I ruled that the test as to what amount to gross negligence is not just an objective reasonable man test (as in the case of Akomako, which was adopted in the subsequent case of R v Misra [2005] 1 Cr App R 328 in the UK), but that the prosecution must prove that the defendant’s subjective state of mind was culpable before the defendant can be found guilty of the offence. I was of the view that the underlying principle expressed by Lord Bingham in R v G [2004] 1 AC 1034, which was soundly approved by the CFA in Sin Kam Wah, was of importance. This underlying principle was that a conviction of a serious crime should depend not only on what the defendant had done (actus reus), but also whether the defendant’s state of mind (mens rea) was culpable. I was of the view that 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. 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 a conviction of such a serious offence. The prosecution’s stance Counsel for the prosecution stressed that in GNM, the principles of the law of negligence applies (Adomako). In the civil law of negligence, when assessing negligence, the personal attribute of the tortfeasor would have already been taken into consideration. Adomako applied an objective test. The CA in HK, in the two cases cited, have adopted the “proper application” of Adomako, with the test for the last element being an objective one. Counsel for the prosecution submitted that my attention was not brought to the CA case of Law Siu Kuen, in which Stock VP, in giving judgment of the court, expressly referred to Adomako in its discussion of GNM (in a motor case). It was submitted that had my attention be drawn to that case, my decision would have been different. My decision in Lai Shui Yin was therefore per incuriam. Counsel for the prosecution also referred me to a subsequent CA case of Ngai Hon Kwong in which McWalters JA, giving judgment of the court, referred to a passage in R v Evans (Gemma) [2009] 1 WLR 1999 (CA) which in turn made reference to Adomako. Counsel for the prosecution submitted that the CA in HK, just like the CA in the UK, has applied the “objective” test for GNM as laid down in Adomako. As judgments of the CA are binding on this Court, I was bound to rule that the objective test propounded in Adomako is applicable in this case. Counsel for the prosecution attempted to show what they understood to have been overruled by the CFA in the case Sin Kam Wah in relation to Chau Ming Cheong. Sin Kam Wah was a case involving the Common Law offence of Misconduct in Public Office. Sir Anthony Mason NPJ reformulated this Common Law offence in light of the decision in AG’s Reference (No 3 of 2003) [2005] QB 73 (CA), the latter having taken into account R v G in its consideration of the relationship between “recklessness” and “wilful misconduct”. It was submitted that although Adomako was not referred to by the CFA in Sin Kam Wah, in light of the subsequent English CA decision in R v Chapman [2015] QB 883 (also a case of Misconduct in Public Office), in which Adomako was left intact as applied in GNM despite the effect of R v G, Sir Anthony Mason NPJ would not have come to the same conclusion had the principles in Adomako been canvassed before him in Sin Kam Wah. Counsel for the prosecution submitted that in R v G, Lord Bingham stressed that he was only dealing with the interpretation of the word “reckless” in the context of the statute creating the offence of Criminal Damage. In overruling Chau Ming Cheong (a case of GNM), Sir Anthony Mason NPJ was concerned with the CA’s reference to “recklessness” in its judgment (as in R v Caldwell [1981] 1 ALL ER 961 and R v Lawrence [1981] 1 ALL ER 974 and cited in Archbold), although that was not as explicitly stated by Sir Anthony Mason NPJ as his overruling of the case of R v Dung Shue Wah [1983] 2 HKC 30 (a case involving the statutory offence of Rape). It was therefore the submission of the prosecution that the CFA did not overrule the “objective” test applied by the CA in Chau Ming Cheong. Counsel for the prosecution submitted that in the present case – GNM in a “medical context” – a jury direction expressed in the terms as those in Adomako and applied in the subsequent case of Misra (ie an objective test) would be appropriate. Finally, counsel for the prosecution referred me to the Specimen Directions for GNM and submitted that the position in HK is the same as that in the UK. Stance of the defence It is not necessary to set out separately the positions of D1 and D3 as their submissions are basically the same. Counsel for D2 has adopted the submissions for D1 and D3. The position of all three defendants is that my judgment in Lai Shui Yin was a correct one. 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. Counsel for D1 and D3 also pointed out that the two CA cases cited by the prosecution (ie Law Siu Kuen and Ngai Hon Kwong) did not touch upon the issue decided in Lai Shui Yin. In addition to the above, counsel for D3 also relied on the cases of Gammon (Hong Kong) Ltd v AG [1985] AC1, Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142 and Kulemesin v HKSAR (2013 16 HKCFAR 195 to support their submission that mens rea is presumed to be required to establish criminal liability, in particular where the offence is truly criminal in nature. Further, counsel for D3 also submitted that the Specimen Directions have no legal effect and the test for the last element does not depend on whether it is a case of GNM in a medical context. My consideration I will first consider the two CA judgments cited by the prosecution to consider whether my decision in Lai Shui Yin was per incuriam. Law Siu Kuen is a case involving a defendant who faced 6 counts of Manslaughter and 6 alternative counts of Dangerous Driving causing Death. He pleaded guilty to 6 counts of Manslaughter. The sentencing Judge said it was unlikely that any effective distinction could be made between Manslaughter and Dangerous Driving causing Death for the purpose of sentencing. The defendant was sentenced to concurrent terms of 6 years’ imprisonment. The Secretary for Justice applied to review the sentences imposed. It was in the context of its discussion of the differences between Manslaughter and Dangerous Driving causing Death that the CA made reference to Adomako. Stock VP, who gave judgment of the CA, said: “ 58. As for manslaughter, it has been said that: ‘… of all crimes, manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions’ (Andrews v Director of Public Prosecutions [1937] AC 576, 581) but what is required in the context of motor manslaughter is proof of breach of the duty of care towards the victim who has died, that that breach caused the death of the victim, and, importantly for present purposes, that ‘having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount’ in the judgment of the jury ‘to a criminal act or omission.’: see R v Adomako [1995] 1 AC 171 at 187. The defendant's conduct ‘has to be such that it creates a very high degree of risk [of death] before it is to be classed as manslaughter’: see Brown v The Queen [2006] 1 AC 1, 16. The distinction is one which ‘recognises that there are degrees of turpitude which will vary according to the gravity of the risk created by the manner of a defendant's driving’: R v Seymour, p.506. In the case of conscious risktaking, of which the instant case is a clear example, it will be appropriate to use the word ‘reckless’ in its ordinary meaning as part of the test and, in that regard, what has to be proved, in the case of motor manslaughter, is an obvious risk of death from the defendant's conduct, objectively assessed, and an indifference to that risk on the part of the defendant, or foresight thereof plus a determination nevertheless to run it: this is an adaptation of the test suggested by R v Lidar (unrep., Court of Appeal, 11 November 1999) , referred to in Archbold 2011, p.1859 para.19110.” Whilst Stock VP have cited Adomako, it is clear that in that case, the CA was dealing with a case of “conscious risktaking” (which denotes a subjective state of mind). Stock VP did not consider the very issue I had to decide in Lai Shui Yin (ie the test for the last element). I do not see how the judgment of Law Siu Kuen, if it had been referred to me at the time, would have affected my decision in Lai Shui Yin. As for the case of Ngai Hon Kwong, the defendant in that case was charged with murder of his longterm friend. The prosecution’s case was that the defendant deliberately splashed alcohol on the deceased and set him alight. The defence was that the deceased died as a result of an accident. The defendant asserted that he was in a bad temper after arguing with his partner (not the deceased). He tripped while carrying the bottle of alcohol and spilt the liquid on the deceased, having spilt some onto his own arm. The defendant then decided to smoke the dangerous drug Ice and he lit a cigarette lighter. His hand caught fire so he threw away the lighter, which then set the deceased on fire. The trial judge was concerned about the effect of Ice on the defendant and directed the jury on the alterative charge of manslaughter (by unlawful and dangerous act). An issue before the CA on appeal was whether the trial judge had failed to direct the jury on GNM. It was in that context that the CA made reference to Adomako, setting out the four elements of GNM (at para 68): “ 68. The elements of gross negligence manslaughter were set out by the House of Lords in R v Adomako (John Asare) [1995] 1 AC 171. They are: the existence of duty of care by the defendant to the deceased; breach of that duty by the defendant; the breach by the defendant of the duty causing the death of the deceased; and the breach of the duty by the defendant being capable of being characterised as gross negligence and therefore a crime.” The CA went on to say: “ 69. Lord Mackay of Clashfern LC in a judgment with which the other members of the House agreed, said at 187CE: 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 [deceased], was such that it should be judged criminal. … 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. 70. All four elements are matters for the jury to decide and the Judge's role is merely to determine whether there is evidence capable of establishing each element. 71. In R v Evans (Gemma) [2009] 1 WLR 1999 the Court of Appeal of England and Wales was dealing with a situation where there was a failure to act when a duty to act arose. As to when a duty to act arose Lord Judge CJ, in giving the judgment of the court, said at 2007H: In our judgment, consistently with R v Adomako [1995] 1 AC 171 and the link between civil and criminal liability for negligence, for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other's life will normally arise. 72. We are satisfied that in this case there was evidence capable of establishing the existence of a duty of care by the applicant to the deceased. It arose when he splashed inflammable liquid on the deceased, thereby placing him in a lifethreatening situation. That duty would have continued until the applicant removed the risk of harm.” The CA was only concerned with the question whether GNM should have been left as an alternative to the jury in the particular circumstances of the case. The CA was not concerned with the test to be applied in relation to the last element. The reference to Evans (Gemma) was in the context of “when a duty to act arose”, as submitted by counsel for D3. There was no discussion or consideration on what the test in relation to the last element was, as a result of the CFA overruling Chau Ming Cheong – the very issue that I was called upon to decide in Lai Shui Yin. With respect to counsel for the prosecution, I disagreed with their submission that my decision in Lai Shui Yin was per incuriam. In Lai Shui Yin, I explained why I came to the conclusion that, as a result of the CFA in Sin Kam Wah overruling Chau Ming Cheong, the test for the last element of GNM in HK is different from that in UK. I do not propose to reiterate them here. Suffice it to say that I am not persuaded by the submission of the prosecution to change my earlier decision. I wish to emphasize my reasoning in Lai Shui Yin regarding the importance of the underlying principle expressed in R v G and approved in Sin Kam Wah: that is, a conviction of a serious crime should depend not only on what the defendant had done, but whether the defendant’s state of mind was culpable. The law should not be such that a person who genuinely did not perceive a 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. Although the cases cited by counsel for D3, (Gammon, Hin Lin Yee and Kulemesin) all concerned with the construction of statutory offences, I agree with their submission that the principles expounded are indeed of general application: the more serious the offence in terms of penalty and social obloquy, the less likely the presumption (that mens rea is required to establish criminal liability) will be held to have been supplanted. These principles echo my reason for placing such importance on the underlying principle. The Specimen Directions referred to by the prosecution, while without any legal effect, are indeed very useful guidance for judges in their preparation of the summing up. The citation of cases such as Adomako therein are for reference only. As I have indicated earlier, I have no quarrel with, and indeed endorsed the application of, the four elements enunciated in Adomako. I only came to the view that the test for the last element is different in HK from that of UK as a result of the CFA in Sin Kam Wah overruling Chau Ming Cheong. For these reasons, I declined the invitation of the prosecution to depart from my earlier decision in Lai Shui Yin. I ruled that in the present case, the test for the last element was the same as what I have ruled in Lai Shui Yin, ie the test for gross negligence was not only an objective reasonable man test, but the prosecution is required to prove that the defendant’s subjective state of mind was culpable, that the defendant was subjectively aware of the obvious and serious risk of death to the deceased. I will add here that the test should be the same for anyone facing a charge of GNM. It makes no difference that the GNM in this case is in a “medical context”. (Judianna Barnes) Judge of the Court of First Instance High Court Mr Raymond Leung SC, leading Mr John Marray, and Mr Eric Tsoi, counsel on fiat and Ms Margaret Lau SPP of Department of Justice, for HKSAR Mr Wong Man Kit SC, leading Mr Charles J. Chan, instructed by Messrs Day & Chan, for the 1st defendant Mr Albert Cheung, instructed by Messrs Lam, Lee & Lai, for the 2nd defendant Mr Peter Duncan SC, leading Ms Deanna Law, instructed by Howse Williams Bowers, for the 3rd defendant