A A
HCCC 437/2015
[2020] HKCFI 3069
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF FIRST INSTANCE
D D
CRIMINAL CASE NO 437 OF 2015
E E
F
BETWEEN F
HKSAR
G G
H and H
I I
MAK Wan-ling Defendant
J J
K K
Before: Hon Barnes J in Court
L L
Date of Sentence: 8 December 2020
M M
N N
REASONS FOR SENTENCE
O O
P P
Charge
Q Q
1. The defendant Mak Wan-ling faced one count of
R R
manslaughter, contrary to Common Law and punishable under section 7 of
S the Offences against the Person Ordinance, Cap.212. S
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2. The defendant was originally tried together with two
B other defendants, Chow Heung-wing and Chan Kwun-chung, each facing B
one count of Manslaughter. After a trial which took 100 days in 2017,
C C
the jury convicted Chow Heung-wing and Chan Kwun-chung but was
D unable to reach a verdict in respect of this defendant. The defendant thus D
had to face a retrial on her own, with Chow Heung-wing, Stephen and
E E
Chan Kwun-chung being named in the indictment.
F F
3. The defendant pleaded not guilty to the charge and she was
G G
found guilty unanimously by a jury of 9.
H H
Facts of the case
I I
J 4. This case centres upon a procedure known as CIK Therapy J
launched and marketed by the DR group at the price of about $59,500
K K
per treatment to customers including the deceased
L Chan Yuen Lam (ChanYL). L
M M
5. At the material time, the DR Group was operating
N 38 beauty centres throughout Hong Kong, including the N
DR Esthetic Centre (Causeway Bay) Limited, Hong Kong
O O
Mesotherapy Centre Limited and a laboratory named Asia Pacific Stem
P Cell Science Limited (APSC). P
Q Q
6. The DR Group was owned and controlled by Chow Heung-
R wing. Chan Kwun Chung (Billy Chan) was employed by Chow Heung- R
wing as a technician working at APSC. The defendant was a qualified
S S
medical doctor (a GP) employed to work at clinics under the DR Group.
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7. CIK Therapy involved the drawing of a quantity of blood
B from a client of the DR Group at a clinic. The blood was then sent to B
APSC for processing. The processing involved the use of cytokine to
C C
induce the growth of killer cells for a period of around 14 days, at a
D temperature of 37 degrees Celsius and 100% humidity. The processed D
blood product was then infused back into the same client.
E E
F 8. Three women, ChanYL, Wong Fung Kwan (WongFK) and F
Wong Ching Bor (WongCB), had their blood extracted by the defendant on
G G
12 September 2012 at the Causeway Bay clinic. Explanation about the CIK
H Therapy was given by the defendant during consultation to each of the H
three women prior to the extraction of blood. The extracted blood was
I I
sent to APSC for processing.
J J
9. Evidence before this Court showed that most people working
K K
at APSC were not aware of the fact that CIK processing was taking place
L there. Evidence also showed that Billy, the person responsible for the L
processing of CIK cells, did not cause processed blood products to undergo
M M
any sterility tests, including bacterial tests, despite the fact that there were
N persons qualified and equipment available at APSC to carry out such tests. N
O O
10. Evidence also showed that during the processing at APSC of
P the blood extracted from the three women, and other women including P
Chow Yan Yan (ChowYY) who was the elder sister of Chow Heung Wing,
Q Q
their blood products became contaminated with bacteria known as
R Mycobacterium Abscessus. R
S S
11. Due to the lack of any bacterial tests, the presence of
T Mycobacterium Abscessus was not detected and the contaminated blood T
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products, including the blood product of ChanYL, were sent out of
B APSC on 3 October 2012 to the Causeway Bay clinic for infusion. B
C C
12. The defendant did not check with APSC to see whether
D bacterial tests had been conducted on the processed blood products of the D
three women prior to infusion. She said in evidence that she trusted
E E
APSC and expected that such a basic and fundamental step would have
F been carried out by the laboratory. F
G G
13. The contaminated infusate of each of the three women
H was infused directly into their blood streams by the defendant on H
3 October 2012.
I I
J 14. In the case of ChanYL, she went home after the infusion and J
felt unwell. She went to consult a doctor in private practice that
K K
same night, accompanied by her daughter. She was still unwell in the
L next morning, complaining to her daughter that the pain was worse than L
being in labour when giving birth. Her daughter accompanied her to go
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to the Causeway Bay clinic to look for the defendant. As the defendant
N was conducting an operation in another clinic in Mongkok, an ambulance N
was called and ChanYL was sent to the Ruttonjee Hospital.
O O
P 15. ChanYL was diagnosed to be suffering from septicaemia, P
shock, disseminated intravascular coagulopathy, and adult respiratory
Q Q
distress syndrome. Blood culture of her blood confirmed she
R was suffering from systemic bacterial infection caused by R
Mycobacterium Abscessus.
S S
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16. Despite efforts by the doctors at the ICU, she died on
B 10 October 2012, a week after the infusion. The cause of death was B
“Multi-organ Failure” due to “Mycobacterium Abscessus septicaemia”.
C C
D 17. The defendant was charged with the unlawful killing of D
ChanYL by Gross negligence. There was no dispute that the defendant
E E
was a properly registered doctor responsible for administering the
F CIK blood product to ChanYL and that she owed a duty of care to ChanYL, F
her patient.
G G
H 18. There were four particulars of breach alleged in the H
indictment:
I I
J 2(a) failure to ensure a properly accredited laboratory or a J
properly qualified person was responsible for the preparation
K K
and production of the processed blood product of ChanYL;
L 2(b) failure to ensure bacteria tests had been conducted on the L
said blood product and that such tests had been documented
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prior to administering it to ChanYL;
N 2(c) administering the CIK Therapy to ChanYL without first N
having obtained from ChanYL a proper consent by reason of
O O
the defendant’s failure to inform ChanYL:
P (i) that CIK Therapy was still experimental for P
cancer patients and its efficacy was unproven or uncertain;
Q Q
(ii) there was no scientifically proven benefit to be derived
R from CIK Therapy on healthy patients such as ChanYL; R
(iii) the preparation of CIK Therapy involved culturing of
S S
blood cells in a medium exposed to open air during a
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period of time thus it carried a risk of infection or
B contamination of the patient on whom it was administered; B
(iv) the administration of CIK Therapy had risks of adverse
C C
effects or reactions which could be life-threatening;
D (v) there were various safe and non-invasive alternative D
means for enhancing or improving immunity in
E E
human bodies and the use of CIK Therapy was not
F necessary or medically indicated; and finally. F
2(d) failing to give sufficient regard for the fact that the intended
G G
use of CIK Therapy on ChanYL ought not to have been
H carried out in the circumstances. H
I I
19. As the jury unanimously found the defendant guilty of
J manslaughter by gross negligence, having been directed on the J
5 ingredients that the prosecution had to prove so as to make them sure of
K K
the defendant’s guilt, namely:
L L
(1) The defendant owed an existing duty of care to the deceased;
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(2) The defendant negligently breached that duty of care;
N (3) It was reasonably foreseeable that the breach of that duty gave N
rise to a serious and obvious risk of death;
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(4) The breach of that duty caused the death of the deceased; and
P (5) The circumstances of the breach were truly exceptionally bad P
and so reprehensible as to justify the conclusion that it
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amounted to gross negligence and required criminal sanction.
R R
The jury must have found that the defendant was in breach of her duty to
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ChanYL, that it was reasonably foreseeable that the breach of that duty
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gave rise to a serious and obvious risk of death and indeed caused the death
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of the deceased ChanYL. They must have also been satisfied that the
B circumstances of the breach were truly exceptionally bad and so B
reprehensible as to justify the conclusion that it amounted to
C C
gross negligence and required criminal sanction. Putting it another way,
D they must have been sure that, in all the circumstances, the defendant’s D
conduct, the defendant’s breach of her duty causing the death of ChanYL,
E E
fell so far short of what could reasonably be expected of her that such
F conduct required criminal punishment as opposed to disciplinary action or F
a civil claim for compensation.
G G
H 20. As mentioned, there were four particulars of breach pleaded H
in the indictment. I am prepared, for the purpose of sentencing, to assume
I I
that 2(a) had not been proved on the strength of the evidence adduced.
J I am, however, satisfied that the jury must have found the other three J
particulars of breach, ie. 2(b), 2(c) and 2(d), proved.
K K
L 21. I will set out the background of how and/or why the defendant L
was in breach of her duty.
M M
N 22. In respect of particular 2(b), the defendant admitted she did N
not make enquires with APSC whether bacterial tests had been conducted
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nor did she ask or look for any documentation certifying that such tests had
P been done. She said she had received blood products from the Red Cross P
before and there was no certificate accompanying the blood product.
Q Q
She was not taught to look for such.
R R
23. The defendant said she trusted APSC for the following
S S
reasons:
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(1) the medical director of APSC was her former lecturer, a
B haematologist of repute both locally and internationally; B
(2) APSC was owned by Dr Chow Heung Wing, her employer
C C
whom she trusted;
D (3) she believed the people who worked at APSC had D
high qualifications;
E E
(4) she had received products from APSC previously, including
F CIK blood products, and there was never any incident until F
October 2012; and
G G
(5) conducting bacterial tests was so basic and fundamental that
H it never occurred to her that such tests were not done. H
I I
24. As for her breach of duty as particularised under 2(c) and 2(d),
J she gave her reasons why she believed CIK Therapy was of benefit to J
a healthy person, why she only mentioned side-effect of fever or flu-like
K K
symptoms which would be self-resolved in 48 hours to the patients, in
L particular to ChanYL, why she failed to tell ChanYL the risk of infection L
and contamination and so on.
M M
N 25. In short, the defendant trusted her employer N
Chow Heung Wing, who was a registered medical doctor many years
O O
senior to her. She came to hear about NK Therapy for healthy persons
P when she first met a Professor Oda from Japan in November 2011 during P
a dinner gathering. She thought NK cells were the same as CIK cells,
Q Q
both being white blood cells. She was given a brochure from
R R
Professor Oda about the clinic the latter was running in Japan which she
S
read. In February 2012 she joined a trip to Guangzhou organized by S
Dr Chow. At a military hospital there she met a Professor Xiao who
T T
mentioned during a lecture the use of CIK Therapy on healthy persons.
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She was given a pamphlet by Professor Xiao about DC/CIK therapy for
B cancer patients and she read it on the train journey back. B
C C
26. The defendant said as a result of what she learnt from these
D two professors, and from reading various materials and documents D
provided to her and from her own research on the internet, she came to
E E
believe that CIK Therapy was of benefit to healthy persons even though
F most of the materials she read concerned CIK Therapy being used on F
cancer patients. She believed that CIK Therapy would boost the
G G
immunity of healthy persons, thus improving their general health.
H She also believed that the CIK Therapy conferred psychological and H
social benefit to healthy persons. She believed the risk was, only fever or
I I
flu-like symptoms which would be resolved in 48 hours.
J J
27. As to the other side-effects mentioned in the material she had
K K
read, she was of the view that they would only happen to cancer patients,
L not to healthy persons. L
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28. Based on such belief and after conducting the risk-benefit
N analysis, she was of the view that the benefit outweighed the risk in the N
case of ChanYL. She admitted she did not tell ChanYL any of the
O O
particulars under 2(c) (i) to (v).
P P
Personal Background of the defendant
Q Q
R 29. The defendant is 39 years of age. She has a clear record prior R
to this conviction. She is married and has a 4-year old daughter.
S S
She graduated from the Chinese University of Hong Kong with a
T Bachelor’s degree in Medicine in 2006. After finishing her houseman T
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training she took part in a training course with a view to become a specialist
B in anaesthesiology. She discontinued after receiving 21 months of B
this special training and 3 months’ training in ICU as she had got married
C C
and she did not want to work night-shifts. She has been a holder of
D general medical practitioner’s certificate from 1 July 2007. She started D
working for the DR Group since 2009.
E E
F Mitigation F
G G
30. In mitigation, Mr Duncan submitted that following the
H incident the defendant did not work for some time. She was herself H
severely affected by the consequences of the incident. She suffered from
I I
chronic gastritis and depression, requiring medication. In 2013, the
J defendant joined a charity “Mother’s Choice” as a volunteer. The job J
enabled her to recover some of the self-esteem and her confidence which
K K
had been affected as a result of the incident. In 2014, she started work
L part-time as a GP in a medical practice. She then worked full-time until L
late 2017. Since then she worked part-time again due to the need to spend
M M
more time with her daughter, who suffers from slow development and
N requires special education needs. N
O O
31. The defendant also worked as a volunteer in the community
P influenza vaccination programme run by the University of Hong Kong. P
Q Q
32. I was provided with glowing testimonials on the defendant
R from a number of medical doctors and from personnel involved with R
Mother’s Choice and the Community Influenza Vaccination Programme of
S S
the University of HK. These are people who had worked with and came
T to know the defendant. I do not think it necessary to reiterate all that was T
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said about her. Suffice it to say that the defendant was described as a
B diligent, caring, hard-working and supportive individual. B
C C
33. Mr Duncan submitted that it was obviously a terrible error of
D judgment on the part of the defendant, contributed to by a number of D
factors. Firstly, her perhaps misguided loyalty to her employer.
E E
Secondly, the excessive amount of trust that she chose to place in other
F persons. Thirdly, her carrying out of her professional duty and F
administering all these products in a beauty centre in what appears to be a
G G
surprisingly low level of regulatory control. Fourthly, perhaps her
H relative inexperience as a practising doctor. H
I I
34. Mr Duncan submitted that there are significant features to
J distinguish the defendant from either Dr Chow or Billy Chan. In J
distinguishing the defendant’s case from that of Dr Chow’s, apart from the
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fact that Dr Chow owned the DR Group and was the instigator who
L marketed and profited from the CIK Therapy, Mr Duncan further L
submitted that there was no evidence the defendant was involved in the
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management of the DR Group. There was also no evidence that the
N defendant profited unreasonably from the amount charged for the N
CIK Therapy apart from receiving her salary, reminding this Court that
O O
Mr Bruce SC expressly conceded, before the jury retired to deliberate, that
P the prosecution was not relying on the amount of $59,500 per treatment for P
the CIK Therapy with regard to the defendant.
Q Q
R 35. In respect of Billy Chan, Mr Duncan submitted that it would R
appear, as mentioned by this Court to the jury during the summing up, that
S S
Billy Chan deliberately defied what was a fundamental requirement in the
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cell process. Billy Chan’s case is very different from that of
B the defendant’s. B
C C
36. Mr Duncan submitted that the defendant would suffer greatly
D as a result of the conviction. Apart from the period in which she is D
detained, she faced enormous stress and adverse publicity over a very long
E E
period of time. It’s more than 8 years since the incident happened.
F The defendant was arrested in 2015, three years after the incident and was F
initially tried in 2017 and then only in 2020 that this trial concluded.
G G
It is highly likely that her conviction will bring an end to her medical
H career. She is also facing a number of personal injury claims in the H
civil court.
I I
J 37. Mr Duncan submitted there is no sentencing tariff for the J
offence of manslaughter. The defence team assembled
K K
5 United Kingdom cases for the consideration of this Court. Mr Duncan
L noted that the facts of those cases were in no way identical to the present L
case, but that they were the best the defence team could do in giving this
M M
Court some indicators of the seriousness in which the
N United Kingdom Courts view medical negligence. The five cases are: N
O O
(1) R v Misra [2004] EWCA Crim 2375
P (2) R v Bawa-Garba [2016] EWCA Crim 1841 P
(3) R v Garg (Sudhanshu) [2013] 2 Cr. App.R (S) 30
Q Q
(4) R v Bala Kovvali [2014] 1 Cr. App. R (S) 33
R (5) R v Sellu [2016] All ER (D) 114 R
S S
38. Another factor Mr Duncan asked this Court to take into
T consideration is the concept that a doctor working in a beauty centre where T
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that person would be thinking of the “boss”, as opposed to a doctor working
B in a medical practice where that person would be mixing with other doctors B
and be familiar with medical discipline.
C C
D 39. The defence asked this Court to take the matters advanced into D
consideration and to give the defendant what leniency can justifiably be
E E
given, having regard to the length of the custodial sentence which will
F inevitably follow. F
G G
Consideration of the sentence
H H
40. Section 7 of the Offence against the Person Ordinance
I I
Cap 212 provides: Any person who is convicted of manslaughter shall be
J liable to imprisonment for life and to pay such fine as the court may award. J
K K
41. There are no guideline tariffs for manslaughter cases, as they
L varied significantly in their circumstances. L
M M
42. Whilst the defendant was found guilty of manslaughter by
N Gross Negligence in that she was in negligent breach of her duty of care, N
as a registered medical doctor, to her patient ChanYL, the facts of this case
O O
are very different from the usual medical negligent cases.
P P
43. Most of the medical negligent cases (such as those 5 cases
Q Q
submitted by the defence team) involve patients who were not healthy
R individuals. They were either sick, or having undergone some kinds of R
surgery and was recuperating when the doctors or medical staff failed to
S S
recognise obvious symptoms exhibited by the patients and failed or
T delayed in giving timely treatment, resulting in the death of the patient. T
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I do not think any purpose will be served for me to set out the facts of
B each of the 5 cases submitted. Suffice it to say that the sentences imposed B
ranged from 18 months suspended for two years (Misra) and two years
C C
suspended for two years (Bawa-Garba) to 2 ½ years’ imprisonment (Sellu)
D for cases in which the defendant pleaded not guilty; and two years (Garg) D
to 2 ½ years (Bala Kovvali) for cases in which the defendant pleaded guilty.
E E
F 44. The length of the sentences no doubt reflect the seriousness of F
the breach committed by those medical professionals, which is not
G G
comparable to what had happened in this case, in my view.
H H
45. In the case of the victim ChanYL, she was a healthy woman
I I
of 46 at the time, running a Hong Kong style café (Char Charn Tien) with
J her husband and the two of them had two teenaged children. She was a J
customer of the beauty centre part of the DR Group business and before
K K
she consulted the defendant, she already had one CIK Therapy
L administered by another doctor employed by the DR Group. L
When ChanYL consulted the defendant on 12 September 2012, before
M M
her blood was extracted, ChanYL was not told that the CIK Therapy was
N an experimental treatment for cancer patients and its efficacy had not be N
proven; she was not told that there was no scientific proof that CIK therapy
O O
was of benefit to a healthy person; she was not told of the risk of bacterial
P contamination during the processing at a laboratory; nor was she told of P
the risk of adverse reaction upon infusion due to contamination or
Q Q
infection; she was also not advised that there were simple and non-invasive
R R
alternative methods for boosting her immunity instead of the CIK Therapy.
S
If ChanYL had been told of all of the above, I venture to say it would be S
highly unlikely that she would have consented to the treatment.
T T
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46. As the defendant failed to properly inform and advise
B ChanYL of the true nature, effect and risk of CIK Therapy, the so-called B
consent given by ChanYL did not amount to an “informed consent” to
C C
receive the CIK Therapy.
D D
47. Furthermore, for reasons only known to Billy Chan,
E E
no bacterial tests were conducted either during the processing or before the
F process blood products left APSC. That is despite the fact that such tests F
are basic and fundamental and, in the rudimentary protocol for the
G G
processing of CIK cells given to those investigating the incident at APSC,
H bacterial tests were mentioned as part of the steps. As a result of the H
absence of such tests, the presence of Mycobacterium Abscessus in the
I I
processed blood products was not detected and they were sent to the
J Causeway Bay clinic ready for infusion on 3 October 2012. J
K K
48. Due to the defendant’s breach of her duty, she failed to ensure
L that the processed blood products, in particular the blood product of L
ChanYL, were free from contamination before she administered the
M M
infusion, resulting in ChanYL suffering from septic shock and finally dying
N 7 days later. N
O O
49. It must be remembered that the very fact that ChanYL was
P brought to see the defendant, a medical doctor, showed that ChanYL P
trusted the defendant, as her doctor, to properly advise her as to the
Q Q
suitability of her receiving the CIK Therapy, the benefit and risk of
R receiving such a treatment and so on. The defendant, unfortunately for R
ChanYL, failed miserably in that respect.
S S
T T
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50. I appreciate the defendant was not the one who was
B responsible for launching or marketing such a risky treatment in haste or B
making a huge profit from such treatment, as in the case of
C C
Chow Heung Wing, nor was she the one who failed to have the processed
D blood products undergo bacterial tests, as in the case of Billy Chan. D
I accept that at the time she was a relatively inexperienced doctor who had
E E
not even practised medicine as a GP but was practising what she called
F cosmetic medicine on healthy persons in a beauty clinic setting. F
It appears to me that she treated CIK Therapy not much differently from
G G
other beauty treatments she administered to her patients who were
H customers of the DR Group beauty centres. I accept that she was perhaps H
in awe of Dr Chow her boss and she may have been operating under a
I I
misguided loyalty to her employer. She also placed far too much trust on
J others and failed to exercise her own judgment independently, resulting in J
her blind or distorted belief that CIK Therapy was of benefit to
K K
healthy persons with little side effect.
L L
51. To me, the defendant was the last line of defence in this
M M
money-grabbing venture orchestrated by Chow Heung Wing and
N N
supported by Chan Kwun Chung. Leaving aside her breach in failing to
O
properly inform ChanYL of the nature and effect of, and the risk associated O
with CIK Therapy so that ChanYL would be able to make an informed
P P
consent, her failure to ensure that the processed blood products were free
Q
of contamination before infusion resulted in the processed blood product Q
heavily contaminated with Mycobacterium Abscessus being infused
R R
directly into the blood stream of ChanYL, causing the death of ChanYL.
S S
52. Having considered the circumstances of how the defendant
T T
came to be in breach of her duty causing the death of ChanYL, I am of the
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view that a starting point of 4 ½ years is appropriate in all the circumstances
B to reflect the criminality involved. B
C C
53. I will now consider factors which may allow me to reduce the
D sentence. D
E E
54. Having observed the defendant during two trials, and judging
F from the way she defended the case, I am satisfied that she truly regretted F
what she had done and what had happened to ChanYL, WongFK and
G G
WongCB. The defence did not challenge much of the prosecution case,
H for those they were not in a position to admit under S65C of the Criminal H
Procedure Ordinance, those facts were admitted under S65B, thus saving
I I
a lot of time during the trial. I will take this factor into account to reduce
J the sentence, even though the defendant did not plead guilty to the charge. J
K K
55. I was informed the defendant suffered from chronic gastritis
L and depression, which is understandable in the circumstances due to the L
enormous stress and pressure she must have been under. The incident
M M
occurred in 2012 and the defendant was arrested in 2015, 3 years after the
N incident. In 2017 the defendant was tried together with N
Chow Heung Wing and Chan Kwun Chung. The trial overran badly due
O O
to the stance taken by the defence of Chow Heung Wing, and not by
P this defendant. P
Q Q
56. During the first trial, I ruled that the test of “reasonable
R foreseeability” of the “serious and obvious risk of death” was a subjective R
one. The jury was unable to reach a verdict in the case of the defendant.
S S
After the conclusion of that trial, in another Gross Negligence
T Manslaughter case before me (the LPG taxi explosion case), I maintained T
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my ruling on the relevant test of reasonable foreseeability.
B The prosecution in that case took the case to the Court of Appeal and B
the defendant obtained leave to join in so as to advance submission in
C C
support of my ruling. The Court of Appeal reversed my ruling and
D ruled that the relevant test was an objective one. The defendant’s appeal D
to the Court of Final Appeal was unanimously dismissed by the
E E
Highest Court in Hong Kong.
F F
57. The re-trial of the defendant, with a different (and more
G G
unfavourable) test on this issue of reasonable foreseeability, only took
H place this year, resulting in the defendant having this matter over her head H
for 8 years. The delay with the accompanying stress and pressure is
I I
certainly a factor I will take into account when considering the
J final sentence. J
K K
58. I will also take into account what Mr Duncan has said on the
L defendant’s behalf in mitigation. The defendant was a person with no L
previous criminal conviction. As a result of this conviction, it is indeed
M M
likely that she will lose her qualification to practise as a general
N practitioner. Further, as a result of her gross negligence, she has to N
face civil compensation claims as well.
O O
P 59. I am of the view that it would be appropriate for me to give P
the defendant a reduction of 3 months for saving the court’s time in the
Q Q
trial. I will give the defendant a further reduction of 9 months to take into
R account, mainly, for having this stressful matter over her head for 8 years R
and for having to face a tougher test of reasonable foreseeability of the risk
S S
of death during the retrial, and, to a lesser extent, the personal
T T
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circumstances of the defendant, including the likelihood of her being
B disqualified from practising as a doctor and having to face civil claims. B
C C
Actual sentence
D D
60. For the offence of Manslaughter by Gross Negligence,
E E
the defendant is sentenced to 3 ½ years’ imprisonment.
F F
G G
H H
I I
(Judianna Barnes)
Judge of the Court of First Instance
J J
High Court
K Mr Andrew Bruce SC, leading Mr David CW Cheung, counsel on fiat, and K
Ms Margaret Lau SPP of Department of Justice, for the Prosecution.
L L
M Mr Peter Duncan SC, leading Ms Deanna Law, instructed by M
Howse Williams, for the Defendant.
N N
O O
P P
Q Q
R R
S S
T T
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A A
HCCC 437/2015
[2020] HKCFI 3069
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF FIRST INSTANCE
D D
CRIMINAL CASE NO 437 OF 2015
E E
F
BETWEEN F
HKSAR
G G
H and H
I I
MAK Wan-ling Defendant
J J
K K
Before: Hon Barnes J in Court
L L
Date of Sentence: 8 December 2020
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N N
REASONS FOR SENTENCE
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P P
Charge
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1. The defendant Mak Wan-ling faced one count of
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manslaughter, contrary to Common Law and punishable under section 7 of
S the Offences against the Person Ordinance, Cap.212. S
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2. The defendant was originally tried together with two
B other defendants, Chow Heung-wing and Chan Kwun-chung, each facing B
one count of Manslaughter. After a trial which took 100 days in 2017,
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the jury convicted Chow Heung-wing and Chan Kwun-chung but was
D unable to reach a verdict in respect of this defendant. The defendant thus D
had to face a retrial on her own, with Chow Heung-wing, Stephen and
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Chan Kwun-chung being named in the indictment.
F F
3. The defendant pleaded not guilty to the charge and she was
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found guilty unanimously by a jury of 9.
H H
Facts of the case
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J 4. This case centres upon a procedure known as CIK Therapy J
launched and marketed by the DR group at the price of about $59,500
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per treatment to customers including the deceased
L Chan Yuen Lam (ChanYL). L
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5. At the material time, the DR Group was operating
N 38 beauty centres throughout Hong Kong, including the N
DR Esthetic Centre (Causeway Bay) Limited, Hong Kong
O O
Mesotherapy Centre Limited and a laboratory named Asia Pacific Stem
P Cell Science Limited (APSC). P
Q Q
6. The DR Group was owned and controlled by Chow Heung-
R wing. Chan Kwun Chung (Billy Chan) was employed by Chow Heung- R
wing as a technician working at APSC. The defendant was a qualified
S S
medical doctor (a GP) employed to work at clinics under the DR Group.
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7. CIK Therapy involved the drawing of a quantity of blood
B from a client of the DR Group at a clinic. The blood was then sent to B
APSC for processing. The processing involved the use of cytokine to
C C
induce the growth of killer cells for a period of around 14 days, at a
D temperature of 37 degrees Celsius and 100% humidity. The processed D
blood product was then infused back into the same client.
E E
F 8. Three women, ChanYL, Wong Fung Kwan (WongFK) and F
Wong Ching Bor (WongCB), had their blood extracted by the defendant on
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12 September 2012 at the Causeway Bay clinic. Explanation about the CIK
H Therapy was given by the defendant during consultation to each of the H
three women prior to the extraction of blood. The extracted blood was
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sent to APSC for processing.
J J
9. Evidence before this Court showed that most people working
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at APSC were not aware of the fact that CIK processing was taking place
L there. Evidence also showed that Billy, the person responsible for the L
processing of CIK cells, did not cause processed blood products to undergo
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any sterility tests, including bacterial tests, despite the fact that there were
N persons qualified and equipment available at APSC to carry out such tests. N
O O
10. Evidence also showed that during the processing at APSC of
P the blood extracted from the three women, and other women including P
Chow Yan Yan (ChowYY) who was the elder sister of Chow Heung Wing,
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their blood products became contaminated with bacteria known as
R Mycobacterium Abscessus. R
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11. Due to the lack of any bacterial tests, the presence of
T Mycobacterium Abscessus was not detected and the contaminated blood T
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products, including the blood product of ChanYL, were sent out of
B APSC on 3 October 2012 to the Causeway Bay clinic for infusion. B
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12. The defendant did not check with APSC to see whether
D bacterial tests had been conducted on the processed blood products of the D
three women prior to infusion. She said in evidence that she trusted
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APSC and expected that such a basic and fundamental step would have
F been carried out by the laboratory. F
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13. The contaminated infusate of each of the three women
H was infused directly into their blood streams by the defendant on H
3 October 2012.
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J 14. In the case of ChanYL, she went home after the infusion and J
felt unwell. She went to consult a doctor in private practice that
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same night, accompanied by her daughter. She was still unwell in the
L next morning, complaining to her daughter that the pain was worse than L
being in labour when giving birth. Her daughter accompanied her to go
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to the Causeway Bay clinic to look for the defendant. As the defendant
N was conducting an operation in another clinic in Mongkok, an ambulance N
was called and ChanYL was sent to the Ruttonjee Hospital.
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P 15. ChanYL was diagnosed to be suffering from septicaemia, P
shock, disseminated intravascular coagulopathy, and adult respiratory
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distress syndrome. Blood culture of her blood confirmed she
R was suffering from systemic bacterial infection caused by R
Mycobacterium Abscessus.
S S
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16. Despite efforts by the doctors at the ICU, she died on
B 10 October 2012, a week after the infusion. The cause of death was B
“Multi-organ Failure” due to “Mycobacterium Abscessus septicaemia”.
C C
D 17. The defendant was charged with the unlawful killing of D
ChanYL by Gross negligence. There was no dispute that the defendant
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was a properly registered doctor responsible for administering the
F CIK blood product to ChanYL and that she owed a duty of care to ChanYL, F
her patient.
G G
H 18. There were four particulars of breach alleged in the H
indictment:
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J 2(a) failure to ensure a properly accredited laboratory or a J
properly qualified person was responsible for the preparation
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and production of the processed blood product of ChanYL;
L 2(b) failure to ensure bacteria tests had been conducted on the L
said blood product and that such tests had been documented
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prior to administering it to ChanYL;
N 2(c) administering the CIK Therapy to ChanYL without first N
having obtained from ChanYL a proper consent by reason of
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the defendant’s failure to inform ChanYL:
P (i) that CIK Therapy was still experimental for P
cancer patients and its efficacy was unproven or uncertain;
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(ii) there was no scientifically proven benefit to be derived
R from CIK Therapy on healthy patients such as ChanYL; R
(iii) the preparation of CIK Therapy involved culturing of
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blood cells in a medium exposed to open air during a
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period of time thus it carried a risk of infection or
B contamination of the patient on whom it was administered; B
(iv) the administration of CIK Therapy had risks of adverse
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effects or reactions which could be life-threatening;
D (v) there were various safe and non-invasive alternative D
means for enhancing or improving immunity in
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human bodies and the use of CIK Therapy was not
F necessary or medically indicated; and finally. F
2(d) failing to give sufficient regard for the fact that the intended
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use of CIK Therapy on ChanYL ought not to have been
H carried out in the circumstances. H
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19. As the jury unanimously found the defendant guilty of
J manslaughter by gross negligence, having been directed on the J
5 ingredients that the prosecution had to prove so as to make them sure of
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the defendant’s guilt, namely:
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(1) The defendant owed an existing duty of care to the deceased;
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(2) The defendant negligently breached that duty of care;
N (3) It was reasonably foreseeable that the breach of that duty gave N
rise to a serious and obvious risk of death;
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(4) The breach of that duty caused the death of the deceased; and
P (5) The circumstances of the breach were truly exceptionally bad P
and so reprehensible as to justify the conclusion that it
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amounted to gross negligence and required criminal sanction.
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The jury must have found that the defendant was in breach of her duty to
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ChanYL, that it was reasonably foreseeable that the breach of that duty
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gave rise to a serious and obvious risk of death and indeed caused the death
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of the deceased ChanYL. They must have also been satisfied that the
B circumstances of the breach were truly exceptionally bad and so B
reprehensible as to justify the conclusion that it amounted to
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gross negligence and required criminal sanction. Putting it another way,
D they must have been sure that, in all the circumstances, the defendant’s D
conduct, the defendant’s breach of her duty causing the death of ChanYL,
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fell so far short of what could reasonably be expected of her that such
F conduct required criminal punishment as opposed to disciplinary action or F
a civil claim for compensation.
G G
H 20. As mentioned, there were four particulars of breach pleaded H
in the indictment. I am prepared, for the purpose of sentencing, to assume
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that 2(a) had not been proved on the strength of the evidence adduced.
J I am, however, satisfied that the jury must have found the other three J
particulars of breach, ie. 2(b), 2(c) and 2(d), proved.
K K
L 21. I will set out the background of how and/or why the defendant L
was in breach of her duty.
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N 22. In respect of particular 2(b), the defendant admitted she did N
not make enquires with APSC whether bacterial tests had been conducted
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nor did she ask or look for any documentation certifying that such tests had
P been done. She said she had received blood products from the Red Cross P
before and there was no certificate accompanying the blood product.
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She was not taught to look for such.
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23. The defendant said she trusted APSC for the following
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reasons:
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(1) the medical director of APSC was her former lecturer, a
B haematologist of repute both locally and internationally; B
(2) APSC was owned by Dr Chow Heung Wing, her employer
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whom she trusted;
D (3) she believed the people who worked at APSC had D
high qualifications;
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(4) she had received products from APSC previously, including
F CIK blood products, and there was never any incident until F
October 2012; and
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(5) conducting bacterial tests was so basic and fundamental that
H it never occurred to her that such tests were not done. H
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24. As for her breach of duty as particularised under 2(c) and 2(d),
J she gave her reasons why she believed CIK Therapy was of benefit to J
a healthy person, why she only mentioned side-effect of fever or flu-like
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symptoms which would be self-resolved in 48 hours to the patients, in
L particular to ChanYL, why she failed to tell ChanYL the risk of infection L
and contamination and so on.
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N 25. In short, the defendant trusted her employer N
Chow Heung Wing, who was a registered medical doctor many years
O O
senior to her. She came to hear about NK Therapy for healthy persons
P when she first met a Professor Oda from Japan in November 2011 during P
a dinner gathering. She thought NK cells were the same as CIK cells,
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both being white blood cells. She was given a brochure from
R R
Professor Oda about the clinic the latter was running in Japan which she
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read. In February 2012 she joined a trip to Guangzhou organized by S
Dr Chow. At a military hospital there she met a Professor Xiao who
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mentioned during a lecture the use of CIK Therapy on healthy persons.
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She was given a pamphlet by Professor Xiao about DC/CIK therapy for
B cancer patients and she read it on the train journey back. B
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26. The defendant said as a result of what she learnt from these
D two professors, and from reading various materials and documents D
provided to her and from her own research on the internet, she came to
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believe that CIK Therapy was of benefit to healthy persons even though
F most of the materials she read concerned CIK Therapy being used on F
cancer patients. She believed that CIK Therapy would boost the
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immunity of healthy persons, thus improving their general health.
H She also believed that the CIK Therapy conferred psychological and H
social benefit to healthy persons. She believed the risk was, only fever or
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flu-like symptoms which would be resolved in 48 hours.
J J
27. As to the other side-effects mentioned in the material she had
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read, she was of the view that they would only happen to cancer patients,
L not to healthy persons. L
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28. Based on such belief and after conducting the risk-benefit
N analysis, she was of the view that the benefit outweighed the risk in the N
case of ChanYL. She admitted she did not tell ChanYL any of the
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particulars under 2(c) (i) to (v).
P P
Personal Background of the defendant
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R 29. The defendant is 39 years of age. She has a clear record prior R
to this conviction. She is married and has a 4-year old daughter.
S S
She graduated from the Chinese University of Hong Kong with a
T Bachelor’s degree in Medicine in 2006. After finishing her houseman T
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training she took part in a training course with a view to become a specialist
B in anaesthesiology. She discontinued after receiving 21 months of B
this special training and 3 months’ training in ICU as she had got married
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and she did not want to work night-shifts. She has been a holder of
D general medical practitioner’s certificate from 1 July 2007. She started D
working for the DR Group since 2009.
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F Mitigation F
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30. In mitigation, Mr Duncan submitted that following the
H incident the defendant did not work for some time. She was herself H
severely affected by the consequences of the incident. She suffered from
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chronic gastritis and depression, requiring medication. In 2013, the
J defendant joined a charity “Mother’s Choice” as a volunteer. The job J
enabled her to recover some of the self-esteem and her confidence which
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had been affected as a result of the incident. In 2014, she started work
L part-time as a GP in a medical practice. She then worked full-time until L
late 2017. Since then she worked part-time again due to the need to spend
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more time with her daughter, who suffers from slow development and
N requires special education needs. N
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31. The defendant also worked as a volunteer in the community
P influenza vaccination programme run by the University of Hong Kong. P
Q Q
32. I was provided with glowing testimonials on the defendant
R from a number of medical doctors and from personnel involved with R
Mother’s Choice and the Community Influenza Vaccination Programme of
S S
the University of HK. These are people who had worked with and came
T to know the defendant. I do not think it necessary to reiterate all that was T
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said about her. Suffice it to say that the defendant was described as a
B diligent, caring, hard-working and supportive individual. B
C C
33. Mr Duncan submitted that it was obviously a terrible error of
D judgment on the part of the defendant, contributed to by a number of D
factors. Firstly, her perhaps misguided loyalty to her employer.
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Secondly, the excessive amount of trust that she chose to place in other
F persons. Thirdly, her carrying out of her professional duty and F
administering all these products in a beauty centre in what appears to be a
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surprisingly low level of regulatory control. Fourthly, perhaps her
H relative inexperience as a practising doctor. H
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34. Mr Duncan submitted that there are significant features to
J distinguish the defendant from either Dr Chow or Billy Chan. In J
distinguishing the defendant’s case from that of Dr Chow’s, apart from the
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fact that Dr Chow owned the DR Group and was the instigator who
L marketed and profited from the CIK Therapy, Mr Duncan further L
submitted that there was no evidence the defendant was involved in the
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management of the DR Group. There was also no evidence that the
N defendant profited unreasonably from the amount charged for the N
CIK Therapy apart from receiving her salary, reminding this Court that
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Mr Bruce SC expressly conceded, before the jury retired to deliberate, that
P the prosecution was not relying on the amount of $59,500 per treatment for P
the CIK Therapy with regard to the defendant.
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R 35. In respect of Billy Chan, Mr Duncan submitted that it would R
appear, as mentioned by this Court to the jury during the summing up, that
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Billy Chan deliberately defied what was a fundamental requirement in the
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cell process. Billy Chan’s case is very different from that of
B the defendant’s. B
C C
36. Mr Duncan submitted that the defendant would suffer greatly
D as a result of the conviction. Apart from the period in which she is D
detained, she faced enormous stress and adverse publicity over a very long
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period of time. It’s more than 8 years since the incident happened.
F The defendant was arrested in 2015, three years after the incident and was F
initially tried in 2017 and then only in 2020 that this trial concluded.
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It is highly likely that her conviction will bring an end to her medical
H career. She is also facing a number of personal injury claims in the H
civil court.
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J 37. Mr Duncan submitted there is no sentencing tariff for the J
offence of manslaughter. The defence team assembled
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5 United Kingdom cases for the consideration of this Court. Mr Duncan
L noted that the facts of those cases were in no way identical to the present L
case, but that they were the best the defence team could do in giving this
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Court some indicators of the seriousness in which the
N United Kingdom Courts view medical negligence. The five cases are: N
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(1) R v Misra [2004] EWCA Crim 2375
P (2) R v Bawa-Garba [2016] EWCA Crim 1841 P
(3) R v Garg (Sudhanshu) [2013] 2 Cr. App.R (S) 30
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(4) R v Bala Kovvali [2014] 1 Cr. App. R (S) 33
R (5) R v Sellu [2016] All ER (D) 114 R
S S
38. Another factor Mr Duncan asked this Court to take into
T consideration is the concept that a doctor working in a beauty centre where T
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that person would be thinking of the “boss”, as opposed to a doctor working
B in a medical practice where that person would be mixing with other doctors B
and be familiar with medical discipline.
C C
D 39. The defence asked this Court to take the matters advanced into D
consideration and to give the defendant what leniency can justifiably be
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given, having regard to the length of the custodial sentence which will
F inevitably follow. F
G G
Consideration of the sentence
H H
40. Section 7 of the Offence against the Person Ordinance
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Cap 212 provides: Any person who is convicted of manslaughter shall be
J liable to imprisonment for life and to pay such fine as the court may award. J
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41. There are no guideline tariffs for manslaughter cases, as they
L varied significantly in their circumstances. L
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42. Whilst the defendant was found guilty of manslaughter by
N Gross Negligence in that she was in negligent breach of her duty of care, N
as a registered medical doctor, to her patient ChanYL, the facts of this case
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are very different from the usual medical negligent cases.
P P
43. Most of the medical negligent cases (such as those 5 cases
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submitted by the defence team) involve patients who were not healthy
R individuals. They were either sick, or having undergone some kinds of R
surgery and was recuperating when the doctors or medical staff failed to
S S
recognise obvious symptoms exhibited by the patients and failed or
T delayed in giving timely treatment, resulting in the death of the patient. T
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I do not think any purpose will be served for me to set out the facts of
B each of the 5 cases submitted. Suffice it to say that the sentences imposed B
ranged from 18 months suspended for two years (Misra) and two years
C C
suspended for two years (Bawa-Garba) to 2 ½ years’ imprisonment (Sellu)
D for cases in which the defendant pleaded not guilty; and two years (Garg) D
to 2 ½ years (Bala Kovvali) for cases in which the defendant pleaded guilty.
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F 44. The length of the sentences no doubt reflect the seriousness of F
the breach committed by those medical professionals, which is not
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comparable to what had happened in this case, in my view.
H H
45. In the case of the victim ChanYL, she was a healthy woman
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of 46 at the time, running a Hong Kong style café (Char Charn Tien) with
J her husband and the two of them had two teenaged children. She was a J
customer of the beauty centre part of the DR Group business and before
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she consulted the defendant, she already had one CIK Therapy
L administered by another doctor employed by the DR Group. L
When ChanYL consulted the defendant on 12 September 2012, before
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her blood was extracted, ChanYL was not told that the CIK Therapy was
N an experimental treatment for cancer patients and its efficacy had not be N
proven; she was not told that there was no scientific proof that CIK therapy
O O
was of benefit to a healthy person; she was not told of the risk of bacterial
P contamination during the processing at a laboratory; nor was she told of P
the risk of adverse reaction upon infusion due to contamination or
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infection; she was also not advised that there were simple and non-invasive
R R
alternative methods for boosting her immunity instead of the CIK Therapy.
S
If ChanYL had been told of all of the above, I venture to say it would be S
highly unlikely that she would have consented to the treatment.
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46. As the defendant failed to properly inform and advise
B ChanYL of the true nature, effect and risk of CIK Therapy, the so-called B
consent given by ChanYL did not amount to an “informed consent” to
C C
receive the CIK Therapy.
D D
47. Furthermore, for reasons only known to Billy Chan,
E E
no bacterial tests were conducted either during the processing or before the
F process blood products left APSC. That is despite the fact that such tests F
are basic and fundamental and, in the rudimentary protocol for the
G G
processing of CIK cells given to those investigating the incident at APSC,
H bacterial tests were mentioned as part of the steps. As a result of the H
absence of such tests, the presence of Mycobacterium Abscessus in the
I I
processed blood products was not detected and they were sent to the
J Causeway Bay clinic ready for infusion on 3 October 2012. J
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48. Due to the defendant’s breach of her duty, she failed to ensure
L that the processed blood products, in particular the blood product of L
ChanYL, were free from contamination before she administered the
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infusion, resulting in ChanYL suffering from septic shock and finally dying
N 7 days later. N
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49. It must be remembered that the very fact that ChanYL was
P brought to see the defendant, a medical doctor, showed that ChanYL P
trusted the defendant, as her doctor, to properly advise her as to the
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suitability of her receiving the CIK Therapy, the benefit and risk of
R receiving such a treatment and so on. The defendant, unfortunately for R
ChanYL, failed miserably in that respect.
S S
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50. I appreciate the defendant was not the one who was
B responsible for launching or marketing such a risky treatment in haste or B
making a huge profit from such treatment, as in the case of
C C
Chow Heung Wing, nor was she the one who failed to have the processed
D blood products undergo bacterial tests, as in the case of Billy Chan. D
I accept that at the time she was a relatively inexperienced doctor who had
E E
not even practised medicine as a GP but was practising what she called
F cosmetic medicine on healthy persons in a beauty clinic setting. F
It appears to me that she treated CIK Therapy not much differently from
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other beauty treatments she administered to her patients who were
H customers of the DR Group beauty centres. I accept that she was perhaps H
in awe of Dr Chow her boss and she may have been operating under a
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misguided loyalty to her employer. She also placed far too much trust on
J others and failed to exercise her own judgment independently, resulting in J
her blind or distorted belief that CIK Therapy was of benefit to
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healthy persons with little side effect.
L L
51. To me, the defendant was the last line of defence in this
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money-grabbing venture orchestrated by Chow Heung Wing and
N N
supported by Chan Kwun Chung. Leaving aside her breach in failing to
O
properly inform ChanYL of the nature and effect of, and the risk associated O
with CIK Therapy so that ChanYL would be able to make an informed
P P
consent, her failure to ensure that the processed blood products were free
Q
of contamination before infusion resulted in the processed blood product Q
heavily contaminated with Mycobacterium Abscessus being infused
R R
directly into the blood stream of ChanYL, causing the death of ChanYL.
S S
52. Having considered the circumstances of how the defendant
T T
came to be in breach of her duty causing the death of ChanYL, I am of the
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view that a starting point of 4 ½ years is appropriate in all the circumstances
B to reflect the criminality involved. B
C C
53. I will now consider factors which may allow me to reduce the
D sentence. D
E E
54. Having observed the defendant during two trials, and judging
F from the way she defended the case, I am satisfied that she truly regretted F
what she had done and what had happened to ChanYL, WongFK and
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WongCB. The defence did not challenge much of the prosecution case,
H for those they were not in a position to admit under S65C of the Criminal H
Procedure Ordinance, those facts were admitted under S65B, thus saving
I I
a lot of time during the trial. I will take this factor into account to reduce
J the sentence, even though the defendant did not plead guilty to the charge. J
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55. I was informed the defendant suffered from chronic gastritis
L and depression, which is understandable in the circumstances due to the L
enormous stress and pressure she must have been under. The incident
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occurred in 2012 and the defendant was arrested in 2015, 3 years after the
N incident. In 2017 the defendant was tried together with N
Chow Heung Wing and Chan Kwun Chung. The trial overran badly due
O O
to the stance taken by the defence of Chow Heung Wing, and not by
P this defendant. P
Q Q
56. During the first trial, I ruled that the test of “reasonable
R foreseeability” of the “serious and obvious risk of death” was a subjective R
one. The jury was unable to reach a verdict in the case of the defendant.
S S
After the conclusion of that trial, in another Gross Negligence
T Manslaughter case before me (the LPG taxi explosion case), I maintained T
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my ruling on the relevant test of reasonable foreseeability.
B The prosecution in that case took the case to the Court of Appeal and B
the defendant obtained leave to join in so as to advance submission in
C C
support of my ruling. The Court of Appeal reversed my ruling and
D ruled that the relevant test was an objective one. The defendant’s appeal D
to the Court of Final Appeal was unanimously dismissed by the
E E
Highest Court in Hong Kong.
F F
57. The re-trial of the defendant, with a different (and more
G G
unfavourable) test on this issue of reasonable foreseeability, only took
H place this year, resulting in the defendant having this matter over her head H
for 8 years. The delay with the accompanying stress and pressure is
I I
certainly a factor I will take into account when considering the
J final sentence. J
K K
58. I will also take into account what Mr Duncan has said on the
L defendant’s behalf in mitigation. The defendant was a person with no L
previous criminal conviction. As a result of this conviction, it is indeed
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likely that she will lose her qualification to practise as a general
N practitioner. Further, as a result of her gross negligence, she has to N
face civil compensation claims as well.
O O
P 59. I am of the view that it would be appropriate for me to give P
the defendant a reduction of 3 months for saving the court’s time in the
Q Q
trial. I will give the defendant a further reduction of 9 months to take into
R account, mainly, for having this stressful matter over her head for 8 years R
and for having to face a tougher test of reasonable foreseeability of the risk
S S
of death during the retrial, and, to a lesser extent, the personal
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circumstances of the defendant, including the likelihood of her being
B disqualified from practising as a doctor and having to face civil claims. B
C C
Actual sentence
D D
60. For the offence of Manslaughter by Gross Negligence,
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the defendant is sentenced to 3 ½ years’ imprisonment.
F F
G G
H H
I I
(Judianna Barnes)
Judge of the Court of First Instance
J J
High Court
K Mr Andrew Bruce SC, leading Mr David CW Cheung, counsel on fiat, and K
Ms Margaret Lau SPP of Department of Justice, for the Prosecution.
L L
M Mr Peter Duncan SC, leading Ms Deanna Law, instructed by M
Howse Williams, for the Defendant.
N N
O O
P P
Q Q
R R
S S
T T
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