HKSAR v. Mak Wan Ling

CAQL 1/2018

[2019] HKCA 40

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

RESERVATION OF QUESTION OF LAW NO 1 OF 2018

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Before:  Hon Macrae VP, McWalters JA and Poon JA in Court

Dates of Written Submissions: 10 December 2018 (on behalf of the 3^rd Defendant/Applicant) and 4 October 2018 (on behalf of the Prosecution/Respondent)

Date of Judgment: 9 January 2019

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.The applicant, Mak Wan Ling, applies for a certificate to the Court of Final Appeal that a question of great and general importance is involved in the decision of this Court dated 16 November 2018. The question of law said to be of great and general importance is in the following terms:

“In the offence of manslaughter by gross negligence, should the gross negligence referred to in the last element of the offence as enunciated in R v Adomako [1995] 1 AC 171, namely ‘the breach of the duty by the defendant being capable of being characterised as gross negligence and therefore a crime’ be proved based on the objective reasonable man test only or that in addition to the objective reasonable man test, the prosecution is also required to prove that the defendant’s subjective state of mind was culpable in that the defendant was subjectively aware of the obvious and serious risk of death to the deceased?”

2.We invited argument from the parties as to the jurisdiction of such an appeal, given that our judgment was effectively in response to an interlocutory application on a question of law pursuant to section 81 of the Criminal Procedure Ordinance, Cap 221.  The applicant contends for such a power on the basis that this Court’s decision should be considered a “final decision of the Court of Appeal”, an appeal from which may lie, at the discretion of the Court, to the Court of Final Appeal under section 31 of the Hong Kong Court of Final Appeal Ordinance, Cap 484.

3.Although it does not seem to us to be at all clear‑cut, the respondent has acknowledged, in its original submissions at the appeal, which it re‑adopts for the purpose of this application, that “it is reasonably arguable that the decision [of this Court on a Question of Law reserved under section 81 of the Criminal Procedure Ordinance] is susceptible of an appeal to the Court of Final Appeal”[1]. In putting it in that way, the respondent seems to regard the question of jurisdiction as itself one for the resolution of the Court of Final Appeal.

4.We are prepared for present purposes to assume that an appeal does lie to the Court of Final Appeal, an issue which the Court will no doubt wish to determine for itself, although there will as a result be considerable further delay in the trial of this matter; which is particularly unfortunate, since it is a re‑trial arising out of facts which occurred more than 6 years ago.

5.On the question of law for which certification is sought, assuming jurisdiction, the issue of the fault element in a serious crime such as manslaughter is a matter of obvious importance to the jurisprudence of this jurisdiction, as it has been to that of the United Kingdom, Australia and Canada.  Furthermore, we have already observed, at paragraph 66 of our judgment, that Barnes J’s view of the law is “a respectable and reasoned one”, even though we did not agree with it.

6.We are prepared to grant a certificate in the terms sought.

Mr Andrew Bruce SC, Counsel on fiat, Mr Jonathan Man SADPP, Mr Anthony Chau ADPP (Ag) and Ms Margaret Lau SPP, of the Department of Justice, for the Prosecution

Mr Peter Duncan SC and Ms Deanna Law, instructed by Howse Williams Bowers, for the 3^rd Defendant in HCCC 437/2015