HKSAR v. Chow Heung Wing, Stephen and Others

HCCC 437/2015

[2018] HKCFI 60

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 437 OF 2015

________________________

________________________

_______________________________________

REASONS FOR SENTENCE

_______________________________________

Charges

1.Chow Heung Wing Stephen (D1), Chan Kwun Chung (D2) and Mak Wan Ling (D3) each faced one count of manslaughter, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance, Cap 212.

2.After a trial lasting for 100 days, the jury found both D1 and D2 guilty.  As for D3, the jury was unable to reach a verdict.

The facts in relation to D1

3.Judging from the jury’s verdict, the jury must have found that D1 was a “hands‑on boss”, someone in effective control of the DR Group of companies including either all or some of the three limited companies: DR Esthetic Centre (Causeway Bay) Limited, Hong Kong Mesotherapy Centre Limited and Asia Pacific Stem Cell Science Limited, and as such a person in effect control, he was in breach of his duty of care to the deceased Chan Yuen Lam.

4.The particulars of breach of duty of care cited against D1 in the indictment were that D1, in the knowledge that the CIK Therapy was based on experimental process for the treatment of cancer and which involved the extraction, manipulation in a laboratory and reintroduction of blood taken from Chan Yuen Lam, (a) failed to ensure a properly qualified person was responsible for the preparation of the CIK blood product; (b) failed to ensure properly validated protocol was in use for the CIK processing, which included the process of sterility test; (c) failed to ensure that sterility test was in fact carried out and documented; (d) failed to have a safe system to ensure that the doctor who administered the blood product to Chan Yuen Lam had checked that sterility test had been conducted and documented; and lastly, (e) failed to fully inform Chan Yuen Lam the risks involved in the administration of the CIK Therapy.

5.In finding D1 guilty, the jury must have been satisfied that the breach of duty which they found proved was the cause, or the substantial cause, of the death of Chan Yuen Lam.  The evidence showed that Chan Yuen Lam was admitted into the Ruttonjee Hospital on 4 October 2012, the day after she received the CIK infusion.  Upon admission Chan Yuen Lam was diagnosed to be suffering from septic shock.  The bacteria Mycobacterium Abscessus was found in her blood.  The number of bacteria was so abundant that Dr Raymond Liu, the doctor in charge of the ICU at Ruttonjee, described it as “catastrophic”.  Professor Yuen Kwok Yung, an eminent microbiologist invited by Dr Liu to look at the situation of Chan Yuen Lam, told this court that he had only ever seen one case of such severity: that was in a case of a terminally ill AIDS patient.

6.The bacteria in Chan Yuen Lam’s blood were so numerous that they could be detected even before any bacterial culturing was performed.

7.Bearing in mind that from the evidence, the culturing of the CIK cells involved the manipulation of the blood in the laboratory of APSC and being kept in incubation at a temperature of 37 degrees Celsius for around 15 days, any bacterial contamination, if unchecked or undetected, would result in the bacteria being multiplied to a vast number.

8.The evidence before this court, which the jury clearly accepted, was that the contamination of Chan Yuen Lam’s blood product must have occurred at APSC during the culturing process, of which D2 was the person responsible.  The breach of duty on the part of D1 resulted in the bacterial contamination not being checked and the heavily contaminated blood product was directly infused into the blood stream of Chan Yuen Lam, causing her to suffer from Mycobacterium Abscessus septicaemia, from which she died due to multi‑organ failure.

9.The jury’s findings also indicated that they were sure that at the time of the breach they found proved, D1 was aware of a serious and obvious risk of death to Chan Yuen Lam.

10.Lastly, the jury must have also found that the breach, in all circumstances, were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.  Put differently, the negligence of D1 went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of Chan Yuen Lam as to amount to a crime and deserves punishment.

The facts in relation to D2

11.Again, judging from the jury’s verdict, the jury must have found that D2, as the person who was responsible for the preparation of the CIK blood product of Chan Yuen Lam, owed Chan Yuen Lam a duty of care.

12.The breach of duty cited against D2 in the indictment was that in the knowledge that CIK Therapy was based on experimental process for the treatment of cancer which involved the extraction, manipulation in a laboratory and reintroduction of the blood taken from Chan Yuen Lam, (a) failed to ensure he was a properly qualified person to be responsible for the preparation of the CIK cells; (b) failed to have a properly validated protocol for the CIK culturing, which included a sterility test; (c) failed to conduct sterility test and documented the same, and (d) failed to have a safe system in which a document showing that sterility test had been conducted to accompany the blood product of Chan Yuen Lam when it left APSC.

13.It should be noted that during his closing speech, D2’s counsel Mr Albert Cheung conceded that if the jury were to find D2 owed a duty of care to Chan Yuen Lam (which was denied), D2 was in breach of all the particulars pleaded against him save and except the first one, namely, that D2 failed to ensure he was a properly qualified person to be responsible for the preparation of the CIK blood product of Chan Yuen Lam.

14.On the evidence before this court, D2 must be aware, from the various medical journals either located by him or brought to his attention, of the fact that CIK Therapy was still only experimental for the treatment of cancer and remained unproven at the material time.

15.The jury must have found that D2 was in breach of his duty of care and, at the time of the breach they found proved, D2 was aware of the serious and obvious risk of death to Chan Yuen Lam.

16.The jury must have found that the breach they found proved was the cause, or the substantial cause, of the death of Chan Yuen Lam.  The failure on the part of D2 to have a properly validated protocol for the culturing of CIK cells; the failure to have bacterial test conducted on the blood product of Chan Yuen Lam – either during the culturing process or after the culturing process, but in any event before the blood product of Chan Yuen Lam was taken out of APSC to be infused into her; and the failure to have a system documenting that sterility test had been conducted, resulted in the heavily contaminated blood product of Chan Yuen Lam not being detected and the blood product was directly infused into the blood stream of Chan Yuen Lam, causing her death.

17.The jury must also have found that the breach they found proved against D2, in all circumstances, were truly exceptionally bad and so reprehensible as to as to justify the conclusion that it amounted to gross negligence and required criminal sanction.  In other words, the negligence of D2 went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of Chan Yuen Lam as to amount to a crime and deserves punishment.

Antecedent of D1

18.D1 was born in November 1954 so he is now aged 63.  He is married with 5 grown up children.  He was a man of clear record before this trial. D1 graduated from the University of Hong Kong in 1979 with a Bachelor’s degree in Medicine and a Bachelor’s degree in Surgery.  He practised as a medical doctor in his private clinic between 1981 and 1994.  He founded the DR Group of companies in 1995 and ceased practising as a medical doctor.

Antecedent of D2

19.D2 was born in January 1985 and is now aged 32.  He is divorced but prior to his incarceration after his conviction in this case, his ex‑wife and their new‑born daughter were residing with him.  D2 graduated from the Hong Kong Polytechnic University in 2007, with a Bachelor’s degree in Applied Biology.  In 2009, D2 obtained a Master’s degree in Biomedical and Medical Science at the Chinese University of Hong Kong.  D2 had worked as a Laboratory Technician, a Production Technician and a MSC (Mesenchymal Stem Cell) Laboratory Technician prior to working as a Research Associate at APSC in 2009.

Mitigation on behalf of D1

20.In mitigation, Mr MK Wong SC, D1’s counsel, stressed that according to D1’s evidence in court, D1 was a law‑abiding citizen.  The DR Group had employed in‑house lawyers and D1 had sought legal advice from those lawyers. Letters of enquiries had been sent to the Department of Health concerning products or services provided by the DR Group.  Mr Wong also stressed that the evidence before this court showed that D1 was very concerned with the safety of the customers.  Mr Wong urged this court to sentence D1 on the basis of “lack of supervision” rather than on the basis that D1 had “given instructions” to D2 not to conduct the relevant tests.

21.Mr Wong referred to D1’s evidence about wide consultation with Professor Oda and Professor Xiao in relation to the CIK Therapy, that training was provided by the Military Hospital in Guangzhou, and that D1 had caused research to be conducted.

22.Mr Wong submitted that even though there was no legal requirement to follow GMP or AABB, D1 had given instruction to apply for AABB and had employed qualified persons such as Professor Gregory Cheng and Michael Wah.  D1’s evidence was that he had regarded APSC as having a safe system: i.e. for the processing of products there were three different teams: for culturing, for testing and Quality Assurance.  D1’s evidence was that he had faith in the system.

23.Mr Wong informed this court that after the unfortunate incident, D1 had ceased all business in relation to the CIK Therapy.  For customers who did not have the infusion, they were either refunded or had other products or services given to them in lieu.  In view of the fact that according to the evidence before this Court, when customer No 1 Madam Yip’s blood was found to be not suitable for CIK culturing, instead of refunding the amount of $407,500 to Madam Yip, Madam Yip was requested to purchase other services / therapies with a result that Madam Yip had to make an additional payment of $2299 in cash, this Court queried whether there was documentary proof of refund.  Mr Wong indicated that documentary proof would be provided at a later stage.

24.On 15 December 2017, solicitors acting for D1 provided this Court with documentary evidence to support D1’s claim that over $2.8 million was refunded to some 23 customers between 5 October 2012 and 3 December 2012.

25.Mr Wong further submitted that for the past 5 years the DR Group of companies was suffering from a loss.  APSC had left Science Park and now operated a small laboratory in Lai Chi Kok.  The application for public listing of the DR Group had stopped after the incident on 3 October. D1 had endured a very difficult experience and he has yet to face civil claims arising out of this incident.

26.Mr Wong submitted that this trial was a long and hard one.  D1 was convicted of Gross Negligent Manslaughter (GNM), not an Unlawful Act Manslaughter.  There are no guidelines relating to sentencing for GNM.  In 2012, there was no legal regulations governing CIK Therapy.

27.Mr Wong submitted that CIK represented only a small percentage of all the businesses of the DR Group.

28.In view of all the matters submitted, Mr Wong asked me to take a view as favourable to D1 as possible.

29.Mr Wong handed up some 13 letters of mitigation for my consideration.  They were written by all 5 children of D1; D1’s former school principal; a number of D1’s friends, two former members of staff; and a Buddhist Monk.

30.On 15 December 2012, this Court was provided with additional letters in mitigation.  They are from D1’s sister Chow Yan Yan, D1’s wife Madam Chow, a number of ex‑staff of the DR Group, including Eva Chow, who was described as a director and one of the Central Management Team of the DR Group during the trial.

31.On 18 December, that is today, less than 2 hours before sentence, I was provided with another 64 letters of mitigation, most of them are from ex‑DR staff.

32.I do not intend to refer to the contents of these letters in detail, suffice it to say that they all sang high praises of D1, lauding him for his filial devotion to his parents, his love and care to his children and his siblings, in particular towards his sister Chow Yan Yan who suffered from cancer; his kindness and consideration to his staff, particularly when Hong Kong was hit by SARS and D1 continued to provide employment to his staff even when business was bad; his generosity to those in need, whether the person in need was someone he knew (such as a member of staff or family of the staff), or a total stranger; and his willingness to serve the community.  D1 was said to be an honest and selfless man who actively, and anonymously, made donations to various charities.  Some also mentioned the anguish suffered by D1 as a result of the injuries and harm done to the three customers.

33.The picture they painted of D1 was that D1 was not a money‑hunger businessman, but that D1 was a kind‑hearted and hard‑working person who sincerely believed in the good in developing the technology in stem cells science to benefit the society.  D1 had devoted much of his time and effort in pursuing that goal.  All the writers ask for leniency from this Court on behalf of D1.

Mitigation on behalf of D2

34.Mr Albert Cheung, counsel for D2, submitted in mitigation that D2 is a loving and devoted father to his new daughter, who was born in June this year.  D2 has never been in trouble before.  He has no vices: he doesn’t drink, he doesn’t smoke.  He is an extremely hardworking and ambitious young man.  He is also a kind‑hearted person.  After D2 left the DR Group, he pursued further studies and has become now qualified as a MLT (II).  He was working as a research scientist earning $20,000 per month until he resigned just before this trial began.

35.Mr Cheung submitted what D2 had done was an “error of judgment”, saying because of the way things were kept secret from other staff members in the company, no one told D2 he could discuss technical matters with other colleagues.  In D2’s mind, it was submitted, he could only speak to D1 about matters concerning CIK.

36.Mr Cheung also submitted that D2 did not obtain any immediate benefit for the breach, for example, a raise of salary.  D2 had made a grave mistake and he now lives for the rest of his life with the fact that a person had died as a result of his error of judgment.  The conviction has a huge impact on D2 and his family.

37.Mr Cheung handed up 3 letters of mitigation written on behalf of D2.

38.The first two letters were from D2’s former colleagues while the last was from a pastor of the church D2 was baptised in.

39.On 18 December 2012, that is today, I was provided with another 17 additional letters of mitigation.  They all came from D2’s former colleagues although one was also a relative.

40.Again, I will not refer to the contents of these letters in detail.  D2’s former colleagues said that D2 was a hard‑working and responsible worker who performed his duties whole‑heartedly.  D2 was helpful and willing to share his work experiences with others.  Many believed what had happened was an accident and as a result of the work culture at APSC, saying that D2 would not re‑offend.  The Pastor wrote that since D2 joined the church, D2 participated in various volunteer work organized by the church.  All three commented on the pressure faced by D2 and the impact of D2’s conviction on D2 himself, his family and his young child.  They all ask this Court to be lenient in sentencing D2.

Authority relied on by both the prosecution and the defence

41.As the present case is the first of its kind in the history of Hong Kong, I asked for the assistance from the prosecution and the defence to see if they can refer me to any relevant authorities.  Mr Raymond Leung SC, counsel for the prosecution, brought my attention to the recent English case of R v Mohammed Khalique Zaman (I was given an online version, with the case no 201603723 B3).  That was a case in which a restaurant owner (i.e. Zaman) was convicted of manslaughter and sentenced to 6 years’ imprisonment when a customer consumed food prepared by his restaurant containing peanuts and the deceased died as a result of being allergic to peanuts.  The breach of duty was the failure on the part of the restaurant owner to have a safe system in that either ingredients not containing any nuts (in particular peanuts) were used in the food preparation, or customers patronizing the restaurant were alerted to the risk of the presence of peanuts in meals.  Indeed, in that case, the deceased had specifically asked if the food contained peanuts and the waiter serving him had answered in the negative.  Zaman was not present at the time and in his defence, he admitted he owed a duty of care to the deceased but argued that he was not in breach of his duty.  On appeal the Court upheld both the conviction and the sentence.

42.Though both the prosecution and the defence submitted that the English case is of assistance to this Court, I am afraid I do not agree.  The circumstances of that case is very different from those in the case before this Court.  There was also no admission of duty of care towards the deceased on the part of D1 or D2.  It was the jury who have found both of them owed a duty of care to the deceased.  I do not find the analysis or the sentencing approach in the English case to be of material assistance to me in my consideration of the appropriate sentence.

Consideration of the appropriate sentence for D1

43.Mr MK Wong in his submission tried to persuade this Court that the aggravating features found in the English case I just mentioned: for example, prior to the incident resulting in the death of the deceased, another customer had fallen ill after consuming food prepared by the restaurant containing peanuts, and an inspection by the relevant authorities subsequent to the first incident also disclosed the presence of peanuts.  In other words, Zaman had warnings of the danger of not having any safe system to ensure either ingredients containing peanuts were not used, or that customers were to be alerted of the presence of peanuts, yet he was still in breach of his duty of care which caused the death of the deceased.

44.While the kind of aggravation in the English case is not present in this case, I do not agree that there are no aggravating features in the present case.

45.Before I deal with the particular circumstances surrounding this case, I will make it known that in my view, the evidence given by D1 in court cannot be relied on for the purpose of mitigation.  If the jury has found that D1’s evidence as to his belief and what he had done were true, or may be true, I do not see how the jury would have found D1 guilty of Gross Negligence Manslaughter – even when D1 was in breach of his duty.

46.The jury had found that D1’s breach, in all circumstances, were truly exceptionally bad and so reprehensible as to warrant criminal sanction.  By virtue of the jury’s verdict, the jury must have taken into account the fact that D1 knew the CIK Therapy was an experimental treatment for cancer and was still unproven at the material time; that there was no basis to believe that CIK Therapy would be of benefit to a healthy person; that the deceased Chan Yuen Lam was not given full information in relation to the risks involved in the administration of the CIK Therapy.  Further, that D1 failed to ensure a properly validated protocol (and SOP) was implemented and used for the preparation of the CIK cells; that he failed to ensure sterility tests were conducted on the blood product of Chan Yuen Lam prior to it leaving APSC with proper documentation, and that he failed to have a system requiring the doctor responsible for the infusion to have checked to ensure that sterility test had been performed on the blood product with proper documentation.

47.During the course of this trial, D2’ s counsel, Mr Cheung, put to D1 that it was D1 who had instructed D2 not to carry out the bacterial test on the CIK products.  D1 strenuously denied such an allegation.  D2 did not give or call evidence to support that allegation.  Instead, D2’s counsel asked the jury to draw an inference that D2, as an employee of D1, was acting on instruction of D1.

48.While it is permissible for the jury to give D2 the benefit of the doubt and to consider D2’s case on the basis that D2 might have been acting on D1’s instruction, I will not sentence D1 on the basis that D2’s failure to carry out the necessary bacterial test was as a result of an instruction from him.  I will proceed on the basis that D1 had failed to put in place a proper and safe system, which allowed D2’s failure to conduct bacterial test went unnoticed and unchecked.

49.When I consider the appropriate sentence, I take into account the circumstances of how the DR Group came to launch the CIK Therapy and how the staff of DR Group were told to market the CIK Therapy, which to me, are aggravating features, making this case much worse than one involving simply the issue of product liability.

50.The evidence before the court showed that it was D2 who had brought the idea of NK cells being used for healthcare to D1 back in March 2011.  D1 clearly had embraced D2’s suggestion of using CIK Therapy on the customers of the beauty centre under the DR Group as a “source of steady income”.

51.The evidence clearly showed that at all material time, CIK Therapy was used on cancer patients and was still under clinical trial with mixed results.  CIK Therapy for cancer patients had not been proven and D1 knew about that: as indicated by what D1 had said during the press conference on 6 October 2012.

52.D1 decided to launch CIK Therapy for heathy persons when the evidence showed that the DR Group of companies were not ready to do so (quite apart from the consideration whether such a treatment should have been introduced to healthy persons in the first place): the group including D2 had just returned from Guangzhou after a two‑day trip to learn about CIK Therapy from a Professor Xiao (such a brief visit could hardly be called a proper training session); D2 was sent back to Guangzhou a second time after the announcement of the launch on 8 February 2012; Patrick Tang was later asked to go to find out from a “Supervisor Li” at the hospital in Guangzhou the “trick” in CIK culturing; D2 was still experimenting with CIK processing after the first sale was already made to a customer on 14 February 2012; there was no proper validated protocol and D2 had to ask a supplier (a company called Life Tech) to give him a copy of someone else’s protocol in April 2012; there was no properly validated SOP for the CIK processing and D2, who does not possess any knowledge on CIK cells by reason of education, training or working experience, was left to his own devices to figure out how to culture the CIK cells; and D1 was still discussing with D2 the number of cells to be proliferated after the announcement of the launch; D1 was still asking the scientists employed by the DR Group of companies to do research on CIK Therapy.

53.Yet, despite the fact that the DR Group of companies was not ready to launch the CIK Therapy, CIK Therapy was already marketed and sold to customers of the DR beauty centres.

54.One of the internal notices to the staff demonstrated what D1’s mind set was about the launch of the CIK Therapy before it was ready: there was a reference to having received news that the “Yeung X hospital” (which clearly referred to the Hong Kong Sanatorium & Hospital) would provide NK cell treatment at the end of the year (meaning end of 2012) (Notice dated 8 February 2012, para 3, Bundle C75).

55.It is clear that there was indeed an indecent haste to launch and market the CIK Therapy so as to beat any potential competitor.

56.As to how D1 encouraged his staff to sell products or services of the DR Group of companies to customers, including CIK Therapy, that can also be gauged from the contents of various internal notices to their staff.

57.The sales staff were encouraged to seek out customers.  They were told “[n]ot to believe customers when they say they live in public housing or rented premises, but to talk to customers so that they think you care for them so as to understand their actual background” (Notice dated 1 March 2012, Bundle C82).  There were references to “MGM” (meaning member get member) – to encourage members to bring “missiles” along, with a suggestion of cash reward of 10% to 20% for the member who had brought along customers to spend more than $100,000 and $200,000 on the first day (Notice dated 14 February 2012, Bundle C78).  There was a reference “the best customers were the MGM customers, most of the friends of wealthy persons are wealthy themselves.  MGM introduced by ‘missiles’ are mostly of quality....” (Notice dated 1 March 2012, para 10, Bundle C82).  Managers of beauty centres were encouraged to teach their staff to call more customers, including “Golden Goose” (Notice dated 19 March 2012, para 7, Bundle C86).

58.And there was a system of having overt sales (明數人) and covert sales (暗數人).  There was also a system of calculating the commission on the sales of CIK Therapy (Notice dated 23 March 2012).

59.There was a system in which prior arrangements had been made with credit card companies so that customers did not have to apply separately to the credit card company and would automatically be able to make repayment by instalments.  The staff were encouraged to get customers to apply for such credit cards, with a prize of $3,000 for the manager of the centre that had the most applications for new cards (Notice dated 14 February 2012).  I must say that I find this practice appalling and totally irresponsible.

60.The sales staff who made the most sales had their names appeared on the internal notices and had prizes given to them during the monthly meetings as encouragement.

61.As to how successful such tactics were, one only has to look at the three victims involved in this case.

62.Evidence showed that after Chan Yuen Lam had tragically passed away, her family found out that she had spent HK$1 million on products and services provided by the DR Group.

63.Wong Fung Kwan, who earned $7,000 per month working as a cleaner, ended up paying $70,000 for the CIK treatment.  Wong Fung Kwan’s evidence was that she was told the CIK treatment would boost her immunity and improve her eczema condition. She was also told that the treatment cost $180,000 but a 50% discount was offered to her, and to her alone.

64.In the case of Wong Ching Bor, she told this Court that while she resisted the promotion by the DR beauty consultants on treatments such as Botox, hyaluronic injections, but when the DR representatives talked to her about CIK treatment involving using her own blood to boost up her health, she decided to take part because she needed good health to look after her two sons and to make mortgage payments for her flat.

65.So one can see how the tactics of “befriending” the customers and getting to know them as suggested in the internal notices actually worked.

66.Evidence also showed that beauty consultants get paid for obtaining letters of appreciations from customers.

67.The information about CIK Therapy imparted to the staff of DR beauty centres via the internal notices included the following: that CIK could eliminate bad cells from the body such as tumour, virus or bacteria infected cells and that CIK cells are one’s own cells therefore there will not be incompatibility or allergy (Notice dated 8 February). Staff were told that the leaflet from Guangzhou could be shown to customers and the managers were urged to train the staff to sell CIK to customers (Notice dated 9 February 2012).

68.Staff were told to explain to customers that CIK (they called it AI at the DR centre) was very safe generally, “that the hospital in Guangzhou had performed more than 10,000 case per year and about 5‑10% customers developed fever which subsided within 2 days.  However, as those who received treatment were cancer patients, that may be why they suffered from fever.  Normal person may not develop fever.  Other side effects were unheard of, so it is difficult to guarantee anything....” (Notice dated 11 March 2012).  In the same notice, staff were told that the customers must sign the “Points to note about CIK cell treatment” attached to the notice, saying that the “disclaimer” saved them, ie the company, from “many unreasonable requests by nasty penniless customers for refund or compensation.”  Staff were also encouraged to secretly make audio and video clips if any customer is unreasonable.

69.Dr Godfrey Chan, an expert called by the prosecution, was of opinion that the information in the leaflet from the Guangzhou Hospital was misleading, yet the sales staff were encouraged to sell CIK Therapy to their customers while imparting misleading information to them.

70.Staff were told not to sell to strangers, and not to anyone who had patronized the company for less than 3 treatments (Notice dated 8 February 2012).

71.In the face of such clear evidence of how D1, who was in effective control of the DR Group of companies, instigated or allowed such encouragement to the staff to seek out customers, and to impart such misleading information to them to market the CIK Therapy, it is hard to accept the picture painted by D1’s family, friends and ex‑staff that D1 was not a money‑hunger individual.  It could well be that D1’s family, friend and ex‑staff viewed him under rather different circumstances and under different light.  D1 may well be a filial son to his parents, a loving husband to his wife, a caring and devoted father to his children, a selfless brother to his siblings, a generous employer to his staff and someone who would help those in need, however, the evidence before this Court clearly points to D1 being an ambitious empire‑building and money‑grabbing individual, who paid scant regard to the life and safety to those customers who had agreed to receive the CIK Therapy, including the deceased Chan Yuen Lam.

72.Turning to the contents of the AI Notice which customers, including the deceased, was required to sign, included were the following:

“.... I am certainly aware that it is a novel treatment without any evidence of health effect. I am not going for any medical effect either. The doctor is prepared to explain to me the treatment’s potential side effects including the most common case of developing a fever within 48 hours. I understand there may be other side effects unknown to the doctor since it is a new treatment. Nevertheless, I am willing to try it and will of my own volition assume all possible side effects and responsibilities. I hereby pledge that I will not pursue any liabilities from the doctor or the Hong Kong Mesotherapy Centre Limited.”

73.D1 was clearly only concerned with having a disclaimer so that the DR Group could resist claims from customers.  The contents of the notice did not properly inform the customer the benefits and risks involved in CIK Therapy.  In my view, it is utterly irresponsible and disgraceful for D1 and his group of companies to shirk their responsibilities, and required their gullible and trusting customers, including Chan Yuen Lam, to sign such a disclaimer.

74.It is a fact that the DR Group of companies had a team of in‑house lawyers to give advice.  From the evidence, D1 was careful not to put himself or the DR Group of companies in any position as to infringe any law or legal requirement.  However, the evidence also shows that D1 was making the most use of the loophole or lacuna in the law governing the beauty business at the time for personal gain.  I do not agree with the description that D1 was a law‑abiding citizen, but would say he is someone who treaded very carefully on the fringe.  In any event, this case was not about D1 having infringed any legislation, but that he was grossly negligent in causing the death of Chan Yuen Lam.

75.From the evidence, D1 and his group of companies conducted its business in relation to the services, including the CIK Therapy, in such a way that the whole line, from the sale to the administration of the service / therapy, was all done by the DR Group.  In Chinese “一條龍服務”.  CIK was promoted at the beauty centre.  Customers were brought to the Mesotherapy Centre for assessment and blood was drawn.  Blood was sent to APSC for processing.  Processed blood products were delivered back to Mesotherapy Centre for administration.

76.On the evidence before this Court, the customers were simply told they would be taken to see a doctor, without being told that the doctors were in fact either employed by, or in co‑operation with, the DR Group of companies.  Bearing in mind what D1 had said during the press conference on 6 October 2012 about the “referral to doctors”, D1’s act amounted to creating a façade of independent professionalism to the customers to boost up their confidence in the CIK Therapy.  D1 also exploited the desire of customers like Chan Yuen Lam, who were in a financial position to pay, to have treatment or therapy to improve their health.

77.After decided to launch and market the CIK Therapy when D2 was still experimenting with the CIK processing and the scientists were still doing research, D1 failed to ensure there was properly validated protocol for the processing, he failed to ensure proper sterility test had been conducted on the blood product before it was sent out of APSC to the Mesotherapy Centre for infusion into Chan Yuen Lam, thus causing or allowing the abundant presence of Mycobacterium Abscessus to be undetected and the contaminated blood product was infused directly into the blood stream of Chan Yuen Lam, causing her death.  D1’s negligence showed a total disregard for the life and safety of Chan Yuen Lam.  D1 was only concerned with empire‑building and profit‑making.  The fact that D1 did not inform Science Park, from which APSC obtained premises at a very favourable rate, that APSC was not merely doing “Rapid multiplication of CIK Cells” as a Research and Development (R & D) project, but that the CIK was a money‑making project, strikes me that D1 and his group of companies exploited the Hong Kong government’s initiative relating to the Science Park to make money for personal gain, using R & D as a guise.

78.Further, the gross negligence of D1 did not relate to a single incident of momentary lapse, but that the breach of his duty was over a period of time.

79.In my view, what D1 had done and failed to do in this case were so truly exceptionally bad, and so reprehensible that a long term of imprisonment must be imposed on him to show the disgust and abhorrence felt by the society.  I am of the view that a starting point of 12 years is appropriate.

80.I appreciate that D1 was, before this incident, a man of clear record.  His conviction is no doubt a fall from grace for D1, and would have a huge impact and may even be a hardship on D1 and his family.  D1 will have to face civil claims arising from this tragic incident as well.  However, I do not find any of the above to be mitigating factors, particularly when I consider the anguish and pain suffered by the family of the deceased Chan Yuen Lam, and the hardship they continue to face with the loss of a wife and a mother.

81.As to the refund of over $2.8 million to those customers who had purchased CIK Therapy, without going into details whether they were in fact correct, I do not consider such as a mitigating factor.  A proper refund for those customers is to be expected.  However, if it is shown that those customers did not receive a refund but were coerced to purchase other treatment, that would have amounted to an aggravating factor.

82.Although the family, friends and former staff of D1 all sang his praises, portraying D1 as a wonderful and generous man, in view of such a serious offence, I do not find such assertion amount to “positive good character” which would allow me to consider reducing the starting point of 12 years.

83.Further, I do not detect the slightest hint of remorse from D1.  Throughout the trial, D1 kept stressing that he was only an investor, someone not in effective control of the limited companies he 100% owned and tried very hard to shirk his responsibilities.  D1 was convicted unanimously after a full trial, I do not see any ground to reduce the starting point of 12 years in his case.

Sentence

84.For the offence of manslaughter, D1 is sentenced to 12 years’ imprisonment.

Consideration of the appropriate sentence for D2

85.As for D2, the jury must have found him to be the person responsible for the preparation of the CIK blood products, including that of Chan Yuen Lam, on behalf of APSC and therefore owed a duty of care to the deceased Chan Yuen Lam.

86.In the case of D2, he was an employee of the DR Group and on the evidence, a high flyer within the group.  It was he who had brought to the attention of D1 the idea of using NK cells for healthcare, suggesting that it would have a “selling point” after certain technical issues were resolved.  It was also D2 who suggested that with the number of customers of the DR Group such a therapy would bring in a steady income.

87.Whilst there is nothing wrong to be innovative, there is a difference between experimenting on something new and actually delivering something which one is not competent to do.  It is clear from the evidence that D2 was still experimenting with CIK processing and he did not even have a properly validated protocol by April 2012. There was also no SOP for the processing, so there was no system of check and balance, so that D2 was allowed or permitted to do whatever he wished without anyone pulling him up.

88.It would appear that the jury might have given D2 the benefit of the doubt, even though D2 elected not to give evidence, that he might have dispensed with the sterility test on the instruction of D1.  Even if that be the case, the jury clearly has found, and rightly so, that under the circumstances, the act of D2 following orders from his boss does not distract from the fact that D2 was in total disregard of the life and safety of Chan Yuen Lam, thus warranting criminal sanction.

89.I do not accept the failure by D2 to ensure sterility test was being carried out amount to an “error of judgment” as submitted by his counsel.  D2 took a deliberate and conscious decision not to have sterility test conducted when he was aware of the serious and obvious risk of death posed by any bacterial contamination.  Though there might not be any immediate tangible benefit to D2, his desire to remain in the good books of his boss D1; to continue to have steady increase of salary; and to do well in the company might well have been some of the reasons why he had decided to take such a course of action.

90.As a result of his failure to ensure there was properly validated protocol; his failure to ensure sterility tests were conducted on the blood product of Chan Yuen Lam before it left APSC; his failure to have a safe system to ensure sterility test was done and documented; his conscious decision not to conduct any sterility test on the blood product of Chan Yuen Lam, including the bacterial test, the heavily contaminated blood product remained undetected and was injected directly into the blood stream of Chan Yuen Lam, causing her death.

91.D2 must be punished severely to show the shock and disgust felt by the society.

92.As D2 was an employee, his position was not the same as that of D1.  D1 was clearly the one in charge, the one calling the shots.  Further, the benefits to D2 would not be comparable to those to D1, who was the 100% owner of all the limited companies under the DR Group.  D2’s culpability is therefore not as high as that of D1’s.  That being the case, I am of the view that a starting point of 10 years is appropriate in the case of D2.

93.I appreciate D2 was a man of clear record before this incident.  I also appreciate the hardship faced by D2 and his family, particularly his young 6 months’ old daughter, when D2 is sent to jail.  However, I have to bear in mind the pain and suffering of Chan Yuen Lam’s family as well.

94.I have no doubt that D2 was a hard‑working man who was helpful to others, as indicated by his former colleagues.  He was also willing to perform volunteer work at his church.  I also accept that he will have to live with the regret of causing the death of Chan Yuen Lam for the rest of his life and he will face civil claims arising out of the incident.  I am afraid none of these amount to any mitigating circumstances for me to reduce the starting point of 10 years – particularly when D2 did not plead guilty and was convicted after trial.

Sentence

95.D2 is sentenced to a term of 10 years’ imprisonment for the offence of manslaughter.

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 1^st defendant

Mr Albert Cheung, instructed by Messrs Lam, Lee & Lai, for the 2^nd defendant