HKSAR v Chow Heung Wing Stephen [2022] 1 HKLRD 671, [2021] HKCA 1655

Robert Pang SC appeared for the 2nd applicant in HKSAR v Chow Heung Wing Stephen [2022] 1 HKLRD 671, [2021] HKCA 1655.

The “DR Group” was a set of companies which operated beauty clinics and a laboratory in Hong Kong. D1 was the owner of each of the companies and a registered medical practitioner. In 2012, the DR Group began marketing a new treatment, known as “CIK” treatment, where blood was taken from customers, cultured in a laboratory, and then transfused back into those customers. At the time, it was used experimentally on cancer patients and its benefits were unproven. The DR Group marketed CIK treatment as an anti-ageing therapy. D2 was an employee of the company which operated the laboratory, and was responsible for the culturing process. D2 was not medically trained but held a master’s degree in biomedicine and biochemistry and had previously worked as a *672 stem cell technician. A customer, V, received CIK treatment at one of the DR Group’s beauty clinics. The blood product became contaminated with bacteria during the processing stage at the laboratory before being transfused into her body and she died as a result. In respect of her death, D1 and D2 were charged with gross negligence manslaughter. It was the prosecution’s case, inter alia, that no system was used to test the sterility of the blood product, allowing contamination to go undetected, causing V’s death. D1 and D2 were each convicted after trial and sentenced to 12 and 10 years’ imprisonment, respectively. D1 and D2 sought leave to appeal against conviction and sentence. Amongst other things, it was argued that: (i) in determining whether D1 owed V a personal duty of care, separate from the duty owed by his companies, the Judge erred in adopting the test of “effective control” of the companies instead of whether D1 had “assumed responsibility” for V’s care; (ii) even if D1 did owe a personal duty of care, its scope did not extend to ensuring sterility testing, D1 being entitled to assume that his employees were carrying out everything correctly; (iii) the jury should have been told, in circumstances where D1 believed at the time that D2 would or had conducted sterility testing, to be sure that, objectively and prospectively, there was an obvious, ie clear and unambiguous, risk of death, as distinct from a risk that might have become apparent only upon further investigation; (iv) by raising certain background matters during her directions to the jury on grossness, those matters effectively painting D1 as a “crook”, the Judge failed to confine the circumstances for consideration when assessing the grossness of D1’s negligence to the breach itself; and (v) the sentences imposed were manifestly excessive.

Held, refusing leave to appeal and dismissing D1 and D2’s appeals against conviction, granting leave to appeal and allowing their appeals against sentence and imposing sentences of 10 and 8 years’ imprisonment respectively, that:

Duty of care

• (1) This was a classic case of negligence under established principles and had nothing to do with notions of assumption of responsibility. Whether D1 was in “effective control” of the relevant companies was the correct test to determine if he owed a personal duty of care to V. Those words would have been well understood by any jury, supplemented as they were by the expression “hands-on boss”, which arguably took the element of control even further (Donoghue v Stevenson [1932] AC 562, R v Chargot Ltd (trading as Contract Services) [2009] 1 WLR 1 applied; Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd [1986] AC 1, Caparo Industries Plc v Dickman[1990] 2 AC 605, Williams v Natural Life HealthFoods Ltd [1998] 1 WLR 830 considered; C Evans & Sons v Spritebrand Ltd [1985] 1 WLR 317 distinguished). (See paras.127 – 136, 140.)
• (2) On the evidence, D1 was intimately and personally involved with the companies which marketed, prepared and administered CIK treatment at almost every level of their functions. He truly was a “hands-on” boss in every respect; and, moreover, on a persistent, regular basis. (See paras.134, 137.)

Scope of duty

• (3) Assumptions that everything was in order were of little relevance where a blood product was concerned, and wholly beside the point where there was no safe system employed to deal with it. Any moderately intelligent person, let alone a registered medical practitioner, would have known to set in place a system to ensure that a blood product was not contaminated. Yet here there was no safe system at all. D1, intimately concerned with the marketing, preparation and administration of CIK treatment, must have known that. (See para.137.)

Foreseeability

• (4) D1 (and D2) were not engaged in genuine medical treatment of a “patient” who was ill. CIK treatment was experimental, lacked any approved protocol and its efficacy was unproved. They had themselves created the serious and obvious risk where there was no system in place to protect customers from that risk. Those circumstances were not comparable with genuine medical treatment by professionals where an assessment of a patient’s condition might have revealed something life-threatening if he or she had looked for it (R v Rudling [2016] EWCA Crim 741, R v Sellu [2017] 4 WLR 64, R v Rose (Honey) [2018] QB 328 distinguished). (See paras.142 – 143.)

Grossness

• (5) The “indecent haste” with which CIK treatment was launched, that it was experimental and unproven, yet expensive, and that the laboratory company, although situated in premises obtained at favourable rates as part of a government initiative for scientific research, was in fact being used commercially to generate enormous sums of money for D1, were all relevant to an assessment of the element of grossness. (See para.160.)

Sentence

• (6) In the circumstances, the appropriate sentence for D1 was 10 years’ imprisonment, and 8 years’ imprisonment for D2. The focus of the case was the failure to have a safe system in place to protect the sterility and integrity of blood products. It wasthat failure, which created the serious and obvious risk of death, and which in fact caused the death of V. The injuries caused to other customers, although part of the background evidencing a highly unsafe system, were not part of the counts on which they stood convicted (HKSAR v Lai Chun Ho [2019] 1 HKLRD 4, HKSAR v Ngai Hon Kwong (No 2) [2021] 2 HKLRD 596 considered; R v Zaman [2018] 1 Cr App R (S) 26 distinguished). (See paras.183, 186 – 192.)

Applications for leave to appeal against conviction and sentence

These were the defendants’ applications for leave to appeal against both conviction and sentence for gross negligence manslaughter after a trial before Judianna Barnes J and a jury (see [2018] HKEC 48 for the judgment on sentence) and the hearing of the substantive appeals on sentence.

[The above is excerpted from the headnote to the report in HKLRD.]