HKSAR v. Kwan Hau-chi, Vanessa
Read the full judgment text of CACC 244/2021 on BabelCite. This Court of Appeal judgment was delivered on 24 July 2025.
1. On 23 August 2021, the appellant, a medical practitioner, was convicted after a trial before D’Almada Remedios J (the judge) and a jury of manslaughter by gross negligence in relation to Ms Josephine Lee Kar Ying (the deceased) following a liposuction procedure. [2] On 4 October 2021, the judge sentenced the appellant to 6 years’ imprisonment [3] .
Cited by 1 case · Cites 8 cases
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CACC 244/2021 [2026] HKCA 1078 On appeal from [2021] HKCFI 2978 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 244 OF 2021 (ON APPEAL FROM HCCC NO 200 OF 2018) _______________ BETWEEN
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__________________________________ REASONS FOR JUDGMENT __________________________________ Hon Zervos JA (giving the Reasons for Judgment of the Court): Introduction 1.On 23 August 2021, the appellant, a medical practitioner, was convicted after a trial before D’Almada Remedios J (the judge) and a jury of manslaughter by gross negligence in relation to Ms Josephine Lee Kar Ying (the deceased) following a liposuction procedure.[2] On 4 October 2021, the judge sentenced the appellant to 6 years’ imprisonment[3]. 2.By a notice dated 29 October 2021, the appellant applied for leave to appeal against conviction and sentence. She appealed against conviction on the basis of alleged errors at trial and on fresh evidence from two medical experts. On 11 May 2023, a Single Judge granted the appellant bail and leave to appeal against conviction on Grounds 4 to 10, and against sentence on Grounds 11 and 12. A written judgment was handed down on 23 June 2023.[4] 3.On 10 August 2023, Mr Martin Hui SC, with Ms Sharon Chan, for the appellant, filed re-amended perfected grounds of appeal against conviction and sentence based on the grounds for which leave was granted. It was contended that: the judge wrongly refused to allow defence counsel to cross-examine on (i) the contents of the expert report from Dr Lester Ah Critchley (Dr Critchley) that had been considered by prosecution expert witnesses; and (ii) the original unmuted CCTV footage adduced at trial (Ground 4); the judge failed adequately to sum up and direct the jury on the expert evidence (Ground 5); the judge failed to adequately direct the jury on the issue of causation (Ground 6); the judge erroneously directed on the issue of foreseeability after directing on causation (Ground 7); the judge erred in instructing the jury to find the prosecution case proved on the expert opinion of Dr Phoebe Anne Mainland (Dr Mainland) (Ground 8); the judge failed to give a Kevin Brown direction and to give the jury sufficient instructions regarding multiple particulars of breach of duty (Ground 9); and the conviction was unsafe and unsatisfactory (Ground 10). The additional Grounds 11 and 12 concerned the appellant’s appeal against sentence. 4.Mr Jonathan Man, with Ms Chan Sze-yan, for the respondent, submitted that none of the grounds of appeal, whether individually or collectively, were sufficient to vitiate the conviction. However, it was accepted that the sentence could be reduced on humanitarian grounds in light of the appellant’s terminal illness. The fresh evidence on appeal 5.There were two applications to adduce fresh evidence under section 83V of the Criminal Procedure Ordinance (Cap 221), both made by way of motion dated 12 March 2024. The first was a joint application by the parties to adduce three expert reports from Dr David Andrew Ross Burd (Dr Burd) and three expert reports from Dr Critchley, for the Court’s consideration in relation to Grounds 4 to 6 of the appeal against conviction.[5] The second was an application by the appellant, seeking to adduce four affidavits[6], together with exhibits, including various medical reports relating to herself and members of her family, in support of her appeal against sentence. 6.The Court of Appeal has power under section 83V to receive evidence, consisting of the production of documents or the examination of witnesses, that was not adduced at trial. On the subject of receiving fresh evidence on appeal, the relevant principles have been set out in R v Chattoo[7] and related authorities[8], which address the equivalent Hong Kong provision. This Court has applied R v Chattoo in HKSAR v Sysoev Igorevich Iurii[9]. The relevant principles may be summarised as follows. First, the statutory discretion to receive fresh evidence on appeal applies equally to expert and non-expert evidence, even if the governing provision was not framed with expert evidence specifically in mind. Secondly, the governing criterion is whether it is necessary or expedient in the interests of justice to receive the evidence, taking into account all the factors set out in section 83V.[10] Thirdly, save in exceptional or truly rare circumstances, an appellant will not be permitted to advance on appeal an expert case which could and should have been pursued at trial, or to rerun the same expert case with a different or additional expert, since that would subvert the trial process and convert the appeal into a second “bite of the cherry” by way of a new presentation of expert opinion. Fourthly, the same applies where expert evidence on the relevant issues was obtained for the trial but deliberately not deployed because it was thought that it would assist the prosecution; in such cases, an appellant who chose not to call such expert evidence at trial should be in no better position than one who did. 7.The principal consideration, in deciding whether it is necessary or expedient in the interests of justice to admit fresh evidence, is whether the evidence is credible and relevant, and whether it could have materially affected the outcome of the case. Whilst the Court of Appeal has to be satisfied that there is a reasonable explanation for the evidence not having been adduced at trial, it would be difficult to exclude such evidence on this basis if it appears cogent and relevant to a material issue on appeal. 8.We considered the fresh evidence de bene esse but, for the reasons set out in this judgment, we did not formally admit the medical expert reports or the affidavits. The outcome of the appeal 9.At the conclusion of the hearing, we allowed the appeal against conviction, quashed the conviction and set aside the sentence. The reasons for our decision to overturn the conviction concern the nature of the medical expert evidence and related issues, in particular the failure to put to the jury for its consideration the realistic possibility of an unknown cause of death. Following the pronouncement of our judgment, the respondent made no application for a retrial. We said that we would hand down the reasons for our judgment in due course. This we now do. The elements of gross negligence manslaughter 10.The offence of gross negligence manslaughter is unusual, as it has, as its essential ingredient, the civil concept of negligence, but at a level that is so egregious as to warrant criminal liability. Before a defendant is convicted of manslaughter by reason of gross negligence, the jury must be satisfied so that they are sure (R v Broughton [11]; R v Kuddus [12]; R v Rose [13]) that:
11.The offence of gross negligence manslaughter in the healthcare context arises where a healthcare professional or provider breaches an existing duty of care by a grossly negligent act or omission in the course of medical treatment or care, which causes or significantly contributes to the death of a patient in circumstances involving a serious and obvious risk of death, and where that breach is truly exceptionally bad and so reprehensible as to warrant a criminal sanction. 12.There has been a growing number of cases in which medical malpractice has attracted criminal liability, and this case illustrates the need for greater protection of patient safety and for improved standards of medical care. The prosecution case 13.The prosecution alleged that the appellant failed properly to manage the deceased, who was put under deep sedation for a liposuction procedure, and that this failure resulted in the deceased’s death. 14.The charge in the indictment alleged that the appellant unlawfully killed the deceased by gross negligence on 26 June 2014, in that:[16]
15.It is important to recognise at the outset that the allegation against the appellant was complicated because the forensic pathologist could not ascertain the cause of death. As explained by the judge to the jury, an autopsy, including a toxicology report, did not reveal a specific cause or mechanism of death.[17] The prosecution relied on the evidence of medical experts in the fields of plastic surgery and anaesthesiology, who were critical of the conduct of the liposuction procedure, each expressing an opinion on the cause of death with varying degrees of qualification. 16.The main issues at trial were whether the prosecution had proved that the appellant breached her duty of care as alleged, and whether any such breach amounted to gross negligence that substantially caused, or made a significant contribution to, the deceased’s death. Other related issues concerned whether the deceased was under deep (unconscious) sedation or conscious sedation after the appellant had administered a combination of sedative drugs to facilitate the liposuction procedure she conducted[18]. There were a number of alleged failings in the clinical setting of the operating room and in the conduct of the liposuction procedure, which in various respects were said to have breached professional standards. The question was whether, individually or collectively (although this was unclear), these alleged failings caused, or made a significant contribution to, the death of the deceased. However, there was no allegation against the appellant regarding her surgical skills, the adequacy of the facilities of the operating room, the sterility of the surgical instruments, or an overdose of drugs. 17.In this labyrinth of medical evidence and expert opinions, a key question was whether the deceased died of an unknown cause. This realistic possibility was not raised before the jury for its consideration. The background and facts 18.This was a tragic case, made more complicated at trial because of the uncertainty and divergence of expert opinions as to the deceased’s cause of death. 19.The appellant and the deceased were friends[19]. At the time of the offence, the appellant, a medical practitioner of seven years’ standing, worked part-time at a beauty centre and frequently performed liposuction procedures in an operating room that had been specifically set up for surgeries at the centre[20]. 20.The deceased was a large woman for her height, and her weight was recorded as 116 kilogrammes[21]. The appellant performed the liposuction procedure on the deceased to remove fat from her abdomen on 30 April 2014 without any apparent incident[22]. The procedure was repeated on 26 June 2014, this time to remove fat from the deceased’s back[23]. The deceased was placed in a prone position on the operating table[24] and connected to a Mindray machine to monitor her vital signs and oxygen saturation during the procedure[25]. At the conclusion of the procedure, the deceased did not regain consciousness and died. 21.Inside the operating room were two CCTV cameras - Cameras 4 and 8, which visually recorded most but not all of the room. They did not capture the whole body of the deceased, only the back of her legs. Camera 4 had both audio and visual recording functions[26], whereas Camera 8 only had a visual recording function[27]. During the trial, the footage from the two CCTV cameras was combined to synchronise the visual and audio recording of one camera with the visual recording of the other[28]. This became a contentious issue between the parties due to the late disclosure of the combined CCTV footage and the quality of the synchronisation of the two recordings. 22.A police officer (PW2) put the footage of Camera 4 and Camera 8 on a synchronised screen[29]. When played, the footage recorded by the two cameras ran at different speeds, and the time difference or time lapse ranged from a few seconds to 10 seconds for a 5-minute segment[30]. PW2 cut up the CCTV footage recorded by Cameras 4 and 8 into 5-minute segments, which resulted in a series of 5-minute clips[31]. She put each of the clips together on the same screen[32]. The start time for each clip was the same[33]. The combined clips were Exhibit P55, which was played before the jury[34]. Part of the CCTV footage recorded by Camera 4 was muted upon agreement of the parties[35]. There was also a transcript of the CCTV footage[36]. 23.In performing the liposuction procedure, the appellant was assisted by four female employees of the centre. Two of them were employed as receptionists (Ms Cheng Hoi Ki (Kay, PW4) and Ms So Ka Yan (Yen, PW6)) and the other two as beauticians (Ms Lau Tsz Kwan (Rossa, PW5) and Ms Wong Kai Pui (Addplus, PW8)). At issue in the trial was whether the assistants were suitable and had the proper medical training[37]. 24.The deceased was sedated by an infusion of propofol and a combination of other sedative drugs[38]. Propofol was administered to the deceased at various times throughout the procedure. 25.Although there was an audio and partial visual recording of the procedure, there were no written notes monitoring or recording the deceased’s vital signs, nor was there a record of the drugs administered to her[39]. Dr Mainland, an expert in anaesthesiology, from her viewing of the CCTV footage, was of the opinion that seven syringes of propofol were administered to the deceased[40]. She estimated that a total of 14 ampoules, amounting to 2,800 mg of propofol, had been administered to the deceased[41]. This matter only emerged during the trial from the synchronised CCTV recording[42]. 26.The timing of propofol infusion was as follows: Syringe 1 was started at 11:34:46 hours[43]; Syringe 2 at 11:54:33; Syringe 3 at 12:21:57; Syringe 4 at 12:50:32; Syringe 5 at 13:16:33; Syringe 6 at 13:44:18; and Syringe 7 at 14:09:17[44]. Dr Mainland opined that the deceased was unable to communicate or respond from about the beginning of the operation except for a short period between the 5th and 6th Syringes when she came out of her sedation. From the audio recording, at 13:44:40, the appellant instructed “add 2 cc bolus”[45]; at 13:44:52, the deceased said “Don’t press my hand”[46]; and at about 13:48:16, she said “Painful, painful, painful”[47]. By 14:31:50, no anaesthetic had been infused[48]. The appellant was still operating after the infusion had finished[49]. 27.At about 14:40, the appellant sutured the deceased on completing the liposuction procedure and left the operating room at about 14:44[50]. According to the prosecution, the deceased was still sedated and unconscious[51]. Before leaving the operating room, the appellant told the assistants to hand a key to the deceased as she had something to do, but to tell the deceased to call her[52]. The deceased was detached from the Mindray machine and left prone on the operating table[53]. 28.At about 15:19, one of the assistants noticed that the deceased was not snoring and was unresponsive to physical contact or verbal communication[54], and also looked pale[55]. The appellant was contacted, and she returned to the operating room at about 15:34[56]. She instructed that an emergency 999 call be made at about 15:35[57]. She administered oxygen to the deceased and tried to revive her[58]. She also telephoned another medical practitioner to seek assistance[59]. The police officer, who responded to the 999 call, saw the appellant doing compressions on the deceased’s back as he entered the operating room at about 15:45[60]. At about 15:59, the deceased’s blood pressure could not be measured, and at about 16:00, there was a call for “adrenaline, adrenaline”[61]. At that time the ambulance officers arrived[62]. They removed the deceased from the operating table and placed her in a supine position[63]. The deceased had no pulse, but they still tried to resuscitate her[64]. She was transported to the hospital at about 16:12 and certified dead at about 17:06[65]. The defence case 29.The appellant did not testify, nor call any witnesses. It was the defence case that the deceased was under conscious sedation[66], neither deep sedation nor general anaesthesia[67], and that the Guidelines on Procedural Sedation of the Hong Kong Academy of Medicine (the Guidelines) were neither mandatory nor applicable to the appellant[68]. The defence position was that the assistants were not completely untrained[69]. It was submitted that the appellant made an assessment of the deceased after the liposuction procedure[70], and that there was a resuscitation attempt on the deceased[71]. The CCTV footage only showed the legs of the deceased on the operating table and there was a period when the appellant was out of view, at which time it was contended that the appellant was assessing the deceased following the liposuction procedure[72]. 30.In summary, the defence case was that nothing the appellant did or failed to do substantially caused the deceased’s death[73]. The finding that the cause of death was unascertained 31.Dr Chiao Wing Fu (Dr Chiao), the forensic pathologist, conducted an autopsy on 28 June 2014, two days after the deceased’s death. He concluded that an examination of the deceased’s body revealed no injuries or any form of trauma that could have accounted for the cause of death; there was no infection, perforation or massive haemorrhage over the operated parts. An examination of the vital organs showed no disease or potentially fatal pathology to which the cause of death could have been attributed. The toxicology analysis revealed the presence of an analgesic, local anaesthetic and sedatives, but the blood levels of the drugs could not have accounted for the cause of death. He also discounted the possibility that the cause of death was associated with surgical intervention. He was of the opinion that the cause of death was “unascertained” because the autopsy did not reveal an abnormality or a fatal pathology that could have satisfactorily accounted for the cause. However, he suggested that expertise from a qualified plastic surgeon and anaesthetist should be sought in order to examine the appropriateness of the clinical settings and judgments and to exclude the possibility of any medical mishap[74]. 32.In his report, Dr Chiao set out the following relevant findings and opinions:[75]
The appeal against conviction 33.The mainstay of the prosecution case was the expert medical evidence, and in addressing this appeal, it is necessary to examine the nature and scope of the expert evidence and the related issues regarding the liposuction procedure, including how, in the process of presenting the expert medical evidence, the real possibility of the deceased’s cause of death being unknown was not canvassed with the jury when assessing the elements of the offence of gross negligence manslaughter. 34.As Dr Chiao was unable to ascertain the deceased’s cause of death, this was problematic for the prosecution in establishing a case against the appellant. The prosecution engaged various medical experts in exploring the cause of death, which proved to be difficult, as revealed by the length of time the various medical experts in the fields of plastic surgery and anaesthesiology took to develop and formulate their opinions in light of additional information and considerations. This difficulty was exacerbated by the way the prosecution at trial presented the medical evidence and the medical opinions relied upon to show that the appellant’s breach or breaches of duty caused or significantly contributed to the deceased’s death. The element of causation was an important issue. In this context, the prosecution had to prove that the alleged breach or breaches of duty gave rise to a reasonably foreseeable serious and obvious risk of death, and that such alleged breach or breaches caused or made a significant contribution to the death of the deceased. 35.There are seven grounds of appeal against conviction, Grounds 4 to 10. We first address Grounds 5 and 8 together, as they concern the expert medical evidence, particularly Dr Mainland’s evidence (A. The expert medical evidence and related issues). We next examine Ground 4 regarding the judge’s rulings on the references to Dr Critchley’s expert report and the unmuted CCTV footage (B. Dr Critchley’s report and the unmuted CCTV footage). We turn to consider Grounds 6 and 7 together, which are concerned with the elements of foreseeability and causation (C. The elements of foreseeability and causation). We then examine Ground 9 regarding the judge’s failure to give a Kevin Brown direction (D. The failure to give a Kevin Brown direction). Finally, we analyse the issue and implications of an unknown cause of death, which had not been raised as a ground of appeal (E. The issue of an unknown cause of death). A. The expert medical evidence and related issues[76] 36.Following Dr Chiao’s report, the prosecution obtained from Dr Critchley, a professor and specialist anaesthesiologist, two draft reports, dated 22 and 28 May 2015, and a final report, dated 3 July 2015.[77] That final report was not adduced in evidence, but was considered by Dr Mainland. It was an issue at trial whether the defence could cross-examine Dr Mainland regarding her consideration of Dr Critchley’s report and his findings. 37.We have as a matter of necessity, examined the reports of Dr Critchley and Dr Burd, notwithstanding that they did not give evidence at trial, in order to understand the background and circumstances of the issues raised in relation to how the medical expert evidence evolved and was presented to the jury, and to address related matters concerning the nature and basis of the opinions on the cause of death. 38.Dr Critchley questioned the procedures that were followed by the appellant in performing the liposuction procedure and the lack of documentation. In his first draft, he said that it was his “guess” that the cause of death was a combination of factors that in isolation were innocent but together led to significant cardiorespiratory depression followed by cardiorespiratory arrest that was not promptly treated. [78] In his second draft, he questioned the procedures that were followed and commented that the level of care was below standard. He said that the facilities in the clinic performing liposuction under heavy sedation and the level of staffing were reasonable. He was critical of leaving the unconscious deceased in the care of an inexperienced assistant and the lack of documentation of the procedure. He said that the deceased appeared to have cardiac arrest following the procedure because she was over-sedated and due to other contributing factors.[79] In his final and signed report, he said that the cause of death was cardiorespiratory depression caused by excessive intravenous sedation, possibly complicated by a minor degree of gastric aspiration. He said that the facilities in the clinic for performing liposuction under heavy sedation were reasonable. However, he was critical of carrying out the procedure without a qualified medical assistant and leaving an unconscious patient in the care of untrained personnel.[80] 39.The prosecution also obtained from Dr Chan Yu Wai (Dr Chan), a plastic surgeon, a report dated 16 July 2015 (which was replicated as a statement to the police dated 20 March 2018[81]). He criticised the absence of a formal protocol and a detailed operative record[82]. He noted that from the post-mortem report and the toxicology examination, the apparent cause of death was “not clear”[83]. He said that without certain crucial information, “one cannot judge whether the surgical procedure has been properly performed”[84]. However, he was very critical of the casual approach to the surgical procedure[85]. He explained that before surgery, a medical examination and an adequate explanation of the procedure and its risks should be provided[86]. He also explained that it would be necessary, if the patient did not have communication with the surgeon, for a trained person to assist in monitoring the patient[87]. He was of the view that because of the significant amount of aspirate, the surgery could not have been done under conscious sedation[88]. He said that if a patient was lying prone for the surgery, he would have immediately turned the patient over after the surgery[89]. He expressed the view that the deceased was liable to suffer cardiovascular and respiratory complications that were potentially lethal[90]. 40.On 27 July 2015, the reports of Dr Chan and Dr Critchley were submitted to Dr Chiao for his comments, particularly in respect of their views about the cause of death. On 3 August 2015, Dr Chiao submitted a memorandum commenting on the two expert opinions regarding the deceased’s cause of death. He qualified Dr Chan’s opinion on the cause of death in various respects, namely that the deceased was liable to suffer from cardiovascular and respiratory complications under sedation in a prone position which was potentially lethal, stating that there was no direct clinical information or post-mortem findings to further confirm “this speculation”. He agreed with Dr Chan’s opinion that comments from an anaesthetist would be helpful regarding cardiovascular and respiratory protection during surgery under sedation. In his memorandum, Dr Chiao also commented on Dr Critchley’s report, but this was redacted because the prosecution did not call him to give expert evidence at the trial. 41.On 15 May 2015, the prosecution also instructed Dr Mainland to provide an expert report. She produced a first draft report dated 11 January 2016[91]. She was asked to address matters raised by advising counsel of the Department of Justice on 12 February 2016, resulting in a second draft report dated 15 February 2016[92]. There were further communications with Dr Mainland about her report, and she was provided with additional documents for her consideration in August and October 2016[93]. She was also given a copy of a recent judgment of R v Rudling[94], and asked to address whether the appellant, being in breach of an existing duty of care to her patient, which had been reasonably foreseeable, had given rise to a serious and obvious risk of death, and had caused the death of the deceased.[95] She produced a third draft report dated 17 January 2017[96], in which she stated that the cause of death could not be established with certainty[97]. However, she was critical of the surgical procedure and the way the appellant conducted it. In her opinion, it was likely that the deceased would not have died if the sedative medications had not been administered[98]. 42.In an email dated 13 July 2017, Dr Mainland was provided with CCTV footage of the operating room, which included the audio recording that had been “lately found”.[99] Sometime later, in July 2021, there was a series of emails from Dr Mainland to the prosecution, in which she referred to a report and supplementary report from Dr Burd, who had been instructed by the defence.[100] Dr Burd was highly critical of the opinions of Dr Chan and Dr Mainland, essentially arguing that the appellant had met the appropriate requirements for the liposuction procedure and agreeing with Dr Critchley’s opinion that the level of patient monitoring for sedation procedures provided was reasonable. He spent some time addressing Dr Mainland’s opinion on the issue of supplemental oxygen when administering propofol, with which he strongly disagreed. 43.In an email dated 23 July 2021, Dr Mainland referred to Dr Burd’s supplementary report and said that she should amend her report[101]. On the same day, she produced her final report.[102] There were email communications between prosecuting counsel and Dr Mainland, on 25 July and 1 August 2021, in which Dr Mainland stated that she observed seven syringes of propofol on viewing the CCTV footage and that there was no delay between syringes as she had initially thought.[103] 44.In the Executive Summary of her final report, following an introductory paragraph, Dr Mainland stated:[104]
45.As Dr Mainland could not see the head of the deceased on the CCTV footage, she assumed in paragraph 3 that the deceased had low oxygen levels because of airway obstruction and reduced breathing effort. 46.In her Summary of Conclusions, Dr Mainland stated:[105]
47.In paragraph 6.1, Dr Mainland’s reasoning as to the cause of death was based on a process of elimination that had been employed by medical experts in cases involving shaken baby syndrome where the baby displayed non-accidental injuries which could only be the result of deliberate shaking. However, in this case, the forensic pathologist found no signs of any trauma or injury, rendering this process of elimination logically flawed. She did, however, identify that the deceased’s prone position, deep sedation and lack of supplementary oxygen may have resulted in the deceased’s death, although she accepted that this conclusion was not definitive. In paragraph 6.6, she made legal findings regarding the elements of the offence of gross negligence manslaughter apparently by reference to Rudling, which she had been asked to address. 48.The prosecution requested Dr Chan and Dr Mainland to consider the defence medical expert reports. Dr Chan was asked to provide a supplementary report and to comment on Dr Burd’s expert opinion. He produced a report dated 17 July 2021 in which he commented on Dr Burd’s report, sometimes agreeing with Dr Burd’s opinions.[107] Dr Mainland was asked to address whether she agreed with Dr Critchley’s opinion regarding over sedation as the cause of death and to also comment on Dr Burd’s expert reports. She noted this in the introductory remarks of her final report dated 23 July 2021. Even though the reports of Dr Critchley and Dr Burd were not produced, there was a proper basis on which to cross-examine both Dr Chan and Dr Mainland in respect of their various references to the opinions of Dr Critchley and Dr Burd. 49.One matter that concerns us is how the medical experts prepared their final reports. For instance, Dr Chan produced a report dated 16 July 2015, which was later considered by Dr Chiao. However, neither Dr Chan nor Dr Mainland explained how their opinions had evolved from their earlier drafts. Where relevant, expert reports should record material changes of opinion and the reasons for them. There had been an exchange of opinions and an ongoing debate between the parties’ experts which was not properly reflected in the final reports, although some of it emerged in cross-examination of the expert concerned. 50.The prosecution challenged the admissibility of Dr Burd’s report, which had been highly critical of the opinions of Dr Chan and Dr Mainland, particularly Dr Mainland’s opinion on the issue of supplemental oxygen when administering propofol. This was the main basis on which the judge excluded most of his report from being admitted into evidence. She ruled that his opinions were largely concerned with the subject of anaesthesiology and were outside his field of expertise. The ruling limited Dr Burd’s report substantially[108], and he was not called by the defence. Consequently, the debate between the experts in respect of several pertinent matters was not played out before the jury. However, it has to be said that Dr Burd’s comments were, at times, expressed in strong terms and in areas apparently outside his field of expertise. 51.Initially, the judge took the view that the defence could cross-examine the prosecution expert witnesses on Dr Critchley’s report, as they had made references to his opinions, but she later ruled that the defence could not do so. She directed that the parties could not make any reference to Dr Critchley and further instructed the jury to delete references to Dr Critchley contained in any of the expert reports adduced at trial.[109] The presentation of the medical evidence at trial 52.The prosecution at trial called the expert witnesses in the following order. The first was Dr Chiao (PW10 at trial); the second was Dr Chan (PW11 at trial); and the third was Dr Mainland (PW12 at trial).[110] As explained by the judge, Dr Chiao’s evidence was in respect of the autopsy he conducted on the deceased and his finding that the cause of death of the deceased was “unascertained”. Dr Chan’s evidence concerned the surgical aspects of the liposuction procedure. Dr Mainland’s evidence was in regard to matters such as whether the deceased was in deep sedation during the procedure and all other matters relating to the sedation. The evidence of Dr Chan and Dr Mainland in the areas on which they testified was relevant to the issue of whether the appellant had breached her duty of care owed to the deceased and whether the breach or breaches were the substantial cause of her death.[111] 53.Dr Chan, in addition to giving evidence about the requirements and standards governing surgical procedures, also expressed an opinion about the cause of death which was submitted to Dr Chiao for his opinion. Dr Chiao corrected Dr Chan’s opinion as to the cause of death, dismissing his suggestion that the cause of death was attributable to cardiovascular and respiratory complications, as there was no direct clinical information or post-mortem findings to further confirm “this speculation”. 54.The prosecution case principally centred on the expert opinion of Dr Mainland.[112] She gave expert evidence about the requirements and standards that would be expected when sedating a patient, and about breaches of those requirements and standards that took place during the liposuction procedure on the deceased. She also gave an opinion as to the cause of death, which was expanded and adjusted to some extent from her previous opinions. Her opinion was qualified and assumed various factual matters that were in dispute. 55.Significantly, Dr Chiao was not asked to comment on Dr Mainland’s opinion as to the cause of death, which she qualified by stating that it could not be established “with certainty”. The case was further complicated by the fact that Dr Chiao gave his evidence before that of Dr Mainland, so her opinion as to the cause of death was not considered by him, whose expertise lay in determining causes of death. Dr Mainland’s expert evidence 56.In her evidence, Dr Mainland qualified some of the conclusions in her report. She explained various levels of sedation as defined under the Guidelines[113] and the breaches that were particularised in paragraph (ii) of the charge[114]. She emphasised that conscious sedation and deep sedation were not a step or cut-off, but a continuum.[115] The deceased could go between conscious and deep sedation, especially when there was an interruption of drug infusion, when the level of sedation would be lightened[116]. She explained that, according to the Guidelines, while a doctor could look after and provide for sedation of a patient, there must be rational verbal intercommunication during sedation and monitoring of those verbal commands must be continuously possible during the procedure. If continuous verbal communication was lost, the doctor should devote attention to monitoring and treating the patient until recovery or until such time as another appropriately trained medical practitioner became available[117]. If deep sedation was intended, an anaesthesiologist or an appropriately trained medical practitioner must be present to monitor the patient throughout the procedure[118]. She was of the view that when propofol was administered, there should have been a trained person monitoring the deceased’s vital signs, with supplemental oxygen administered as necessary[119]. 57.When Dr Chiao testified, he was asked if he could tell if a lack of oxygen caused the death, and he explained that it would take hours to show a hypoxic change[120]. Dr Mainland said on this issue that she was not suggesting that the deceased was hypoxic to the catastrophic level for three hours[121]. There was a difference between a lack of oxygen and low oxygen saturation[122]. In her opinion, the deceased’s saturation level was below what it should have been and there was a compromise of oxygen to the deceased’s body[123]. She opined that extra oxygen should be supplied to the patient throughout the procedure, even though the patient could breathe on her own, and cited the Guidelines[124]. 58.Dr Mainland agreed there was no legislation requiring the Guidelines to be followed. However, she testified that “a general principle is if there are guidelines, they’re there for a good reason and if someone chooses not to follow the guidelines they’re – they should be able to justify why the guidelines were not followed.”[125] 59.Dr Mainland was unclear in her opinion as to the actual cause of death, conceding her lack of certainty, and instead referred to the “additive effect”, focusing mainly on hypoxia as the cause of death. This was reflected in the following passage of her evidence in court:[126]
60.In this exchange, Dr Mainland accepted that the deceased’s death was not attributable to a singular failure, but rather to the cumulative effect of the breaches she identified. 61.Dr Mainland’s remarks in her Summary of Conclusions were highlighted by the judge in her summing-up.[127] Her opinion was equivocal, being based on excluding other causes of death to conclude that this “supports cause of death to be the result of over-sedation, respiratory depression, hypoxia and cardiac arrest”.[128] It is relevant that similar remarks made by Dr Chan were excluded as a cause of death by Dr Chiao, who stated that the blood levels of the drugs could not have accounted for the cause of death, and that there was no direct clinical information or post-mortem findings to confirm cardiovascular and respiratory complications. 62.Dr Chiao testified that there was no sign of hypoxia. However, he explained that if a person died from hypoxia, a hypoxic change in the brain or other organs would only show after the deceased had survived for several or more hours following the hypoxic event. Hence, if death occurred within a few hours of the hypoxic event, a histological examination may not reveal specific signs of damage. The prosecution closing address 63.A crucial feature in this appeal is how the prosecution presented and closed its case to the jury. Prosecuting counsel addressed the jury by taking them through the charge in the indictment. She commenced by listing the sedative medications and the dosages that were administered to the deceased as described in Dr Mainland’s report.[129] However, she stated throughout her address that there was no allegation of “overdose”.[130] She also stated that there was no allegation against the appellant in respect of sterilisation or the set-up of the operating room.[131] She then systematically summarised the evidence of the prosecution witnesses, the last three being Dr Chiao, Dr Chan, and finally Dr Mainland, whose expert evidence was the main foundation of the prosecution case. It was unclear whether the prosecution was alleging that one, some or all of the breaches substantially caused the deceased’s death. She told the jury that if they were to come to the conclusion that “there were in fact all these breaches”[132] this was not sufficient to convict, as they had to further address the elements of gross negligence, causation and the grossness of the negligence.[133] She later emphasised to the jury that “the charge is where everything is anchored, so you have to always go back to the charge.”[134] However, she did not address each of the five breaches of duty in respect of the remaining elements, particularly how they individually or cumulatively caused or significantly contributed to the deceased’s death. 64.Both Dr Chan and Dr Mainland identified serious failings in how the procedure was carried out. There was, in particular, a lack of any formal procedure and of a detailed operative record in respect of a patient undergoing surgery under sedation. Notwithstanding these deficiencies, the key issue at trial was the cause of the deceased’s death, or more specifically, which breach or breaches of duty caused or significantly contributed to the deceased’s death, or whether there was a real possibility that the cause of death was unknown and could not be attributed to a breach or breaches of duty. As we have already noted, the forensic pathologist, Dr Chiao, was unable to determine the cause of death and concluded that it was “unascertained”. There were no signs internally or externally of any trauma or injury, and no abnormality or fatal pathology that could have satisfactorily accounted for the death. In our view, there were justifiable criticisms of the way the liposuction procedure was conducted, but there still remained the fundamental issue of how the deceased died. The medical experts were unable to answer these questions with certainty, relying on an overall impression in postulating possible causes. 65.The prosecution identified a number of matters where medical requirements or standards were not, or not properly, adhered to during the liposuction procedure. However, the key focus of the prosecution case was the appellant’s breach of duty in failing to ensure sufficient oxygen supply to the deceased during sedation. When prosecuting counsel addressed this matter in her closing address, she noted that there was no evidence of any additional oxygen being supplied to the deceased, pointing out that the alleged breach was that there was no “sufficient” oxygen supply to the deceased during the operation. She stated that if a patient was breathing normally on her own, she may not need “additional or supplementary oxygen”, but asked the jury to consider the size of the deceased and that she was in a prone position during a three-hour operation.[135] She also addressed the medical guidelines for sedation and the risk of cardiovascular, respiratory or airway compromise during procedural sedation.[136] Further on in her closing address, she referred to Dr Chiao’s evidence, stressing that there was no allegation of an overdose. She noted that Dr Chiao’s evidence was that there were no signs of hypoxia, adding that in Dr Mainland’s report hypoxia was not excluded. After referring to Dr Chiao’s evidence as to how to diagnose signs of hypoxia, she told the jury, “so he said that even if a person died of hypoxia, you may not be able to find signs. It depends on how he died, even if it were from hypoxia. So that was the evidence.”[137] 66.The prosecution, in its closing address to the jury, directed its case on the appellant’s breach of duty in failing to ensure a sufficient supply of oxygen to the deceased during sedation (particular (ii)(b)). This was a critical issue because, in Dr Mainland’s opinion, death resulted from “the additive effect or the combination of several failures”. The judge’s summing-up 67.The judge gave a comprehensive and structured overview of the elements of the offence and the evidence in her directions to the jury, drawing their attention to particular matters. The cause of death was the central issue in this case. At the outset of the summing-up, prior to summarising the prosecution case, she indicated that all four assistants had no medical qualifications nor were they qualified in sedation or qualified to monitor a sedated patient[138]. As for the Guidelines, the judge directed the jury “on the basis if you do not conclude they are applicable then you need not consider the guidelines and you will find that particular (ii)(c) has no relevance and is not proved”[139]. Even when directing the jury on the other particulars, the judge repeatedly referred to evidence presented for particular (ii)(c). The directions for particular (ii)(a), (ii)(d) and (ii)(e) referred respectively to paragraphs 3.4[140], 11.2[141], and 5.4.1.7 and 5.4.1.8 of the Guidelines[142]. 68.The prosecution’s reliance on Dr Mainland’s evidence on the issue of the cause of death was emphasised by the judge in her summing-up as follows:[143]
69.The judge went on to examine in detail Dr Mainland’s expert evidence on the failings or breaches of duty and the cause of death.[144] 70.The judge reminded the jury of Dr Mainland’s opinion that “exclusion of causes such as … or other catastrophic medical events supports the cause of death to be the result of over sedation, respiratory depression, hypoxia and cardiac arrest”[145]. She supplemented this with the forensic pathologist’s evidence, indicating that the jury “may find that Dr Chiao was not excluding death by hypoxia”[146], even though the cause of death “has to be labelled as unascertained”[147]. 71.On the question of causation regarding the alleged breaches of duty, the judge directed the jury as follows:[148]
72.Although the breaches of duty were particularised separately, it would appear the prosecution presented its case on the basis that it was the cumulative effect of all the breaches of duty that substantially caused death. However, the prosecution also emphasised that the lack of supply of oxygen was the main breach of duty, with the others not being capable of substantially causing death. We will discuss this in further detail later in the judgment as it did present a confusing and contrary position regarding the prosecution case. It explains why the judge instructed the jury that any one of the breaches would suffice to find the appellant guilty as long as they also were satisfied that it was a substantial cause of the death of the deceased. Finding guilt on Dr Mainland’s opinion 73.Mr Hui argued that the judge erred in instructing the jury that they could find the prosecution’s case proved if they relied on Dr Mainland’s opinion, thereby risking the expert’s views supplanting the jury’s independent evaluation of all the evidence. He submitted that the judge’s direction, “If you find that you can rely on Dr Mainland’s opinion, you may find the prosecution has proved its case”[149], was inadequate and erroneous, as it essentially invited conviction based solely on the expert’s opinion, notwithstanding that the defence had suggested a direction reminding the jury that the final issue was for them to decide[150]. He further submitted that the risk was compounded by the peculiar features of Dr Mainland’s evidence, including: (i) that her opinions were formed over an extended period from 2015 to 2021[151], based on instructions and materials, including the decision in Rudling[152], which had been provided by the prosecution to her to address; (ii) her expertise was as an anaesthesiologist rather than that of a pathologist; and (iii) her consideration of the expert opinions of Dr Critchley and Dr Burd, in relation to which the judge erroneously directed the jury to ignore and improperly restricted the defence’s cross-examination on the matter[153]. 74.The respondent submitted that the judge gave proper directions to the jury on expert evidence. Regarding Dr Mainland’s opinion, the respondent disagreed with the appellant’s arguments. First, the judge’s directions were consistent with Specimen Direction 110,[154] reminding the jury that they were not obliged to accept expert opinion,[155] and that expert evidence formed only part of the case to be considered alongside all other evidence. Secondly, the prosecution’s reliance on Dr Mainland’s evidence did not require the strong warning suggested by the appellant, as Dr Mainland provided detailed and well-explained opinions.[156] Moreover, the defence did not request a strong warning before or after the summing-up, nor in closing submissions. Thirdly, the judge fairly addressed the defence’s concerns about Dr Mainland’s objectivity and reliability[157], reminding the jury to assess whether Dr Mainland was independent or biased, reflecting the defence’s arguments[158]. Fourthly, the appellant’s claim that the judge undermined the general direction on expert evidence was not correct. The judge’s comment about the jury potentially finding the prosecution had proved its case was limited to the issue of deep sedation[159], not guilt, [160] and she reiterated that the level of sedation was entirely for the jury to decide[161]. A similar argument was rejected in HKSAR v Chow Heung Wing Stephen[162], where the Court of Appeal confirmed that the specimen direction ensures the jury does not allow expert opinions to override their own judgment. Fifthly, when it was assumed that the defence’s witness Dr Burd might give evidence, the defence raised concerns about the timing of Dr Mainland’s response to Dr Burd’s report and her suitability as an expert. After discussion, certain parts of Dr Mainland’s report were deleted[163]. Ultimately, the appellant chose not to call Dr Burd. The judge then properly instructed the jury to disregard the name of an expert who was not called[164], as with Dr Critchley’s reports. 75.We note at this stage that the issue with the directions to the jury lay in the state and presentation of the expert evidence, and in the nature and degree of the uncertainty surrounding the cause of death. 76.The cause of death focussed on by Dr Mainland was oxygen deprivation, and in respect of this matter, Mr Hui contended that the judge erred by:
77.Mr Hui also argued that the judge failed to instruct the jury not to hold the appellant to a specialist’s standard, and this was compounded by repeatedly referring to specialist practices, such as Dr Mainland’s evidence that anaesthetists provide oxygen even when saturation exceeds 95 per cent.[171] The respondent submitted that the judge fairly reminded the jury of the defence’s argument that the Guidelines applied only to specialists[172] and that the appellant was not a specialist[173]. Furthermore, the appellant had failed to identify any standards as inapplicable to her. 78.Mr Hui contended that the judge wrongly highlighted Dr Mainland’s opinion concerning the alleged actions or inactions of the appellant in respect of the head, airway, jaw, chest, mouth or nose of the deceased[174], all of which lay beyond the field of view of the CCTV.[175] He also contended that the judge failed to remind the jury that Dr Mainland acknowledged, under cross-examination, that attempting CPR in the prone position was “very reasonable”.[176] The respondent noted that Dr Mainland accepted it was reasonable to attempt CPR in the prone position only if the patient could not be placed supine[177], although no attempt was made to do so. 79.The respondent submitted that on the matter of oxygen deprivation: (i) the judge did not instruct the jury to disregard Dr Chiao’s comment that there was no clinical information or post-mortem findings confirming the deceased was liable to potentially fatal cardiovascular or respiratory complications; (ii) it was unnecessary to remind the jury that there was no direct evidence on the deceased’s oxygen saturation levels, as the prosecution’s allegation against the appellant was the lack of such record[178]; (iii) it was unnecessary to direct the jury that Mindray’s alarms could have other innocent explanations, as the prosecution’s case was that the appellant repeatedly ignored the alarms without investigating the underlying causes; and (iv) Dr Mainland fairly admitted that she could not see the deceased’s head in the CCTV so she could only surmise the deceased’s airway was not open enough, thus using the term “speculation”[179]. However, her opinion on low oxygen was based on evidence, including the audible and visual alarms from the combined CCTV, the deceased’s prone position, deep sedation, lack of supplementary oxygen[180], the drugs given[181], discussion of oxygen saturation levels shortly before and after the appellant’s return[182], the deceased’s unusual heart rate[183], and the deceased’s snoring and breathing sounds[184]. It was submitted that the judge’s directions on oxygen deprivation were balanced and accurate. 80.The respondent further submitted that the limitations of the CCTV were obvious to the jury from the evidence (such as the footage itself, photographs and a sketch of the operating room[185]) and the judge’s direction[186]. The absence of footage of the deceased’s head did not render Dr Mainland’s opinion on the appellant’s actions unsupported by evidence. Dr Mainland was entitled to form her opinion based on the events captured on CCTV, including the appellant’s actions and conversations in the operating room. The jury was entitled to decide whether to accept Dr Mainland’s opinion based on their own assessment of the evidence. The factual basis of the medical opinions 81.There is a real danger that the reliability and accuracy of an expert opinion will be compromised if it is based on assumed facts which are not ultimately proven, because those facts may warrant a change of opinion. Experts are entitled to their own opinions, not to their own facts. It is therefore important that an expert opinion is based on proven facts, or at least is expressly qualified so as to make clear that the facts are assumed and subject to being established when that is required. However, certain assumptions may legitimately be made based on established principles, practice and procedure in a particular field of learning. 82.The opinions of Dr Chan and Dr Mainland as to the cause of death were expressly qualified and based on a number of factual assumptions. It is therefore appropriate to identify and address the key assumptions and interpretations made by Dr Mainland, on whose evidence the prosecution principally relied. Assumptions and interpretations regarding drug administration 83.Dr Mainland acknowledged that the actual total quantity of sedative drugs administered to the deceased during the procedure was unknown.[187] She initially assumed that only four ampoules of propofol were used because she believed that the entire contents of the clinical waste bin had been seized by the police.[188] She later revised this assumption after viewing the combined CCTV footage and hearing a witness’s testimony in court, concluding instead that at least 6 or 7 syringes of propofol were used.[189] 84.The defence submitted that there was “simply no evidence that the waste bin contained even more empty propofol vials”, and argued that the fact the contents were not fully seized “is not a basis for saying that there could be more empty propofol vials”.[190] The defence, in its closing speech, highlighted that Dr Mainland ultimately “identified seven syringes” and “assumed that each had two ampoules of propofol and every time two ampoules were drawn”.[191] The defence contrasted this assumption with Kay’s testimony that she only drew up the milky white solution “on at least two occasions”.[192] 85.Dr Mainland based her opinion on her interpretation of the handwritten anaesthetic record, assuming that the notation “90” meant an infusion rate of 90 ml per hour and “6 CC” meant a 6 ml bolus dose.[193] She acknowledged that her computer modelling of the patient’s propofol levels represented a “best case scenario” because it did not account for the additional bolus doses or the additive physiological effects of other sedative drugs such as Midazolam and Pethidine.[194] 86.During cross-examination, she stated that she “made that assumption because there was no evidence otherwise”.[195] The defence submitted that the “assumption that there had been a constant rate of infusion is unsafe, making the computer modelling unreliable”.[196] The defence noted that she agreed her modelling “did not take into account any interruptions and the injection or the administration of boluses”, and that the infusion rate could be “reset or re-programmed” when the syringe was changed.[197] Assumptions and interpretations regarding the airway and patient observation 87.Dr Mainland admitted that because the CCTV did not capture the patient’s head, her conclusion that an airway intervention was probably required because of a low oxygen level was based on speculation.[198]
88.Dr Mainland inferred that the oropharyngeal airway device was not used during the surgery because the CCTV later showed an assistant attempting to insert it while waiting for the appellant to return.[199] She further inferred that the appellant’s recorded question, “Why don’t you know how to handle it?”, was a direct reference to the assistants struggling to insert the airway device.[200] 89.The defence argued that she relied on the appellant’s instruction to “tak[e] the airway out just in case” to support an assumption that “deep sedation was intended and that Dr Kwan foresaw respiratory or airway problems”. The defence submitted that taking the airway out “just in case” was merely a “precaution”, and that her interpretation that “airway intervention was required … or was intended” was based on “another false assumption” that the monitor alarms meant the patient’s oxygen level was low.[201] 90.Dr Mainland inferred that the deceased’s leg movements as seen on the CCTV were involuntary reflex actions rather than purposeful responses to pain.[202] She also inferred that the patient briefly regained enough consciousness to speak during the procedure because a delay in changing the propofol syringe caused the drug levels in her blood to drop.[203] Further, she inferred that the deceased was unconscious when the appellant left the room because she asked the assistants to pass a message to the deceased rather than speaking to her directly.[204] Assumptions and interpretations regarding equipment and monitoring 91.Dr Mainland was critical of the use made of the Mindray monitor, assuming that its flashing orange light and continuous alarms indicated that the deceased’s oxygen saturation had fallen below a set safety limit.[205] She opined that the fact the machine “kept alarming suggests that the value was always below a set level,” and that if the set level was wrong, “it should have been changed.”[206] However, the defence observed that she reached the conclusion “without knowing what the limits were with any certainty” regarding the settings that would trigger an alarm.[207] The defence submitted that she had assumed the various alarms were related to oxygen saturation, despite agreeing that supplemental oxygen may not be required if a patient is breathing spontaneously and oxygen saturation is above 95%.[208] 92.A key example of shifting interpretation arose from an audio transcript recorded at 12:17:01, which noted: “98, 97, yelled”, followed by, “These several machines of ours are very sensitive.”[209] In her report, Dr Mainland indicated this would be consistent with a reference to the monitor alarming for oxygen saturation.[210] Yet, in her oral testimony, she acknowledged the CCTV was unclear and claimed it was ambiguous whether “98, 97” referred to the deceased’s pulse rate or her oxygen saturation level.[211] When asked to clarify, she stated there were “two possibilities” and she did not know “whether the 97/98 was the top number or the flashing number” and that it “could be the pulse”.[212] The defence submitted that the CCTV footage showed “only the bottom figure was flashing at the time”, which corresponded to oxygen saturation, yet she maintained she “did not know whether the speaker talking about that 98, 97 was referring to oxygen or pulse”.[213] 93.Dr Mainland further assumed that when the appellant pointed to “the orange blinking one” on the monitor, she was explaining the significance of the oxygen saturation values to the unqualified assistants.[214] In her initial report, she stated that the appellant “was not witnessed to look at the monitor” when the alarm sounded. After CCTV footage confirmed the appellant did, in fact, look at the monitor, Dr Mainland changed her opinion. She acknowledged under cross-examination that she “saw two occasions when Dr Kwan did look at the alarm,” but subsequently added the criticism that “there was still no action and no talk of action addressing the continuing alarming.” [215] The defence submitted that there was a reasonable possibility that the appellant had “looked at and considered the reading and then realised it was just a false alarm” or found the values to be normal before an assistant pressed the monitor.[216] 94.As we have highlighted in our analysis of the expert medical evidence, principally that of Dr Mainland, the factual basis of the medical opinions, and the opinions themselves, were qualified or uncertain, and the alleged breach or breaches of duty that significantly contributed to the death were not specifically addressed, save for the lack of supply of oxygen, which was only addressed in general terms. 95.We should add that Dr Mainland was given a particularly difficult task, having to deal with a series of evolving instructions in changing circumstances over a protracted period, including instructions concerning the legal requirements of gross negligence manslaughter. However, she commented on a wide range of aspects of the liposuction procedure that required careful evaluation as to whether, and if so how, they bore on the elements of the offence. 96.In our view, four material errors occurred in the way in which the expert medical opinions were addressed and adduced in evidence in this case. First, Dr Chiao was not asked to consider and provide an opinion on Dr Mainland’s report regarding the cause of death, even though he had been asked to do so in respect of Dr Chan’s report. Secondly, Dr Chiao gave his evidence before Dr Mainland and therefore did not address Dr Mainland’s findings and opinions as to the cause of death. Thirdly, the issue of hypoxia as a cause of death was dealt with only in general terms and without a detailed analysis of the factual and medical evidence relied on to suggest that the deceased had died from a lack of oxygen. Fourthly, there was a failure to address the real possibility that the deceased’s death was of unknown cause. This must be set against the medical opinions of Dr Chan and Dr Mainland who, while critical of the conduct of the liposuction procedure, expressed a view as to the cause of death which could not be established with certainty. 97.To illustrate the significance of these errors, it is necessary to examine Dr Chiao’s evidence concerning Dr Chan’s report.[217] In his evidence, Dr Chiao adopted a memorandum to the prosecution providing his opinion of Dr Chan’s report on the cause of death. The relevant parts of the memorandum read:
98.In this memorandum, Dr Chiao also commented on Dr Critchley’s report, which was redacted. As already noted, Dr Chiao was not asked to comment on Dr Mainland’s report regarding her opinion on the cause of death. As seen from Dr Chiao’s comments regarding Dr Chan’s opinion on the cause of death, one field of medicine may answer or qualify the views of another. Importantly, Dr Chiao’s expertise is in determining the causes of death. 99.We have been critical of both the presentation and various aspects of the medical experts’ evidence. In this regard, it is appropriate to refer to the remarks of the English Court of Appeal in R v Sellu[218], when considering the expert medical evidence in the prosecution of a doctor for manslaughter by gross negligence. The Court observed that the experts who had given evidence at trial had described the defendant’s actions and inactions in a variety of different ways; while some of those descriptions provided a yardstick against which the jury could consider whether the criminal test had been met, but others were little more than assertions. The Court remarked that the jury had been left on their own to trawl through the differing descriptions, essentially asking themselves whether the behaviour under discussion was or was not gross negligence. Furthermore, the jury were not directed as to how much weight should be attached to these assertions as opposed to other qualitative descriptions. Moreover, the jury were not sufficiently assisted in understanding how to approach their task of identifying the line that separated even serious or very serious mistakes or lapses from conduct that was truly exceptionally bad and represented such a departure from the standard of a reasonably competent doctor that it amounted to criminal conduct. 100.These remarks are apposite to the present case, but their relevance is amplified given that the task of the experts was to find a cause of death which could not be ascertained from the pathology of the deceased. The jury were therefore presented with opinions from the medical experts that were sometimes based on assumptions or amounted to mere assertions. This included criticisms of the appellant’s conduct regarding matters of practice that could not constitute conduct so truly exceptionally bad, and such a departure from the standard of a reasonably competent doctor that it consequently amounted to being criminal. 101.In summary, the conviction was rendered unsafe by the way in which the medical expert evidence was obtained, developed and presented at trial. The prosecution case depended almost entirely on expert evidence which was qualified, rested on unproven assumptions and an incomplete consideration of the forensic pathology evidence, and did not adequately confront the realistic possibility that the cause of death was unknown. In these circumstances, the jury could not safely be invited to treat Dr Mainland’s opinion as determinative either of causation or of guilt. B. Dr Critchley’s report and the unmuted CCTV footage[219] 102.This conclusion on the handling of the expert evidence leads naturally to the next issue, namely whether the defence was unfairly restricted in its ability to challenge the expert evidence through cross-examination of references to Dr Critchley’s report and the unmuted CCTV footage. 103.It was alleged that there was a material irregularity during the trial arising from the judge’s refusal to allow defence counsel to cross-examine on: (i) the contents (or any references) of Dr Critchley’s expert report, despite it being considered by the prosecution’s expert witnesses; and (ii) the original unmuted CCTV footage admitted as Exhibit P55. The appellant submitted that this prevented her from fully presenting her defence, particularly regarding the deceased’s level of sedation, thus undermining her right to a fair trial. Dr Critchley 104.Mr Hui pointed out that all prosecution expert witnesses at trial expressly considered Dr Critchley’s report. He contended that the judge’s refusal to allow any reference to Dr Critchley[220], without hearing proper argument or consideration of the defence’s intended cross-examination, constituted a material irregularity. He argued that this denied the appellant a fair opportunity to challenge the prosecution’s experts on key issues, including Dr Critchley’s opinions that:
105.Mr Hui further added that Dr Critchley’s opinion on the cause of death, namely “(his) guess … a combination of factors that in isolation were innocent, but together lead to significant cardiorespiratory depression (i.e. coma) followed by cardiorespiratory arrest that was not promptly treated”[222], would cast doubt on Dr Mainland’s opinion, that by excluding other causes, the cause of death would be the result of over sedation, respiratory depression, hypoxia and cardiac arrest[223]. 106.The respondent emphasised that Dr Critchley was neither called nor listed as a prosecution witness, noting that he did not view the relevant CCTV footage and his reports contained speculative opinions. The respondent further noted that Dr Mainland did not adopt or rely on Dr Critchley’s opinions. In this context, it was appropriate for the judge only to allow the defence to cross-examine on the contents of the reports but not to adduce the reports.[224] The defence raised no objection to the removal of references to Dr Critchley.[225] The respondent submitted that the judge’s decision was correct, as reliance on untested expert opinions could mislead the jury, and cross-examination on inadmissible evidence is improper.[226] The respondent further submitted that the judge maintained a consistent position throughout the trial, and that the defence had sufficient opportunity to explore the relevant issues with Dr Mainland in cross-examination, for example, regarding the applicability of the relevant guidelines.[227] 107.That is not entirely correct. In the initial exchange between the judge and defence counsel, the judge correctly ruled that Dr Critchley’s two reports could not be produced through Dr Mainland. However, she added that Dr Mainland could be cross-examined about any references she made to Dr Critchley’s report.[228] This was accepted by defence counsel. Later, when Dr Mainland gave her evidence-in-chief, prosecuting counsel produced her final report, referring to Appendix 2 (Instructions), and informed Dr Mainland that any reference to a prior opinion was not a concern in the case. Prosecuting counsel then deleted paragraphs 2.5 and 2.6 in Appendix 2, which made reference to Dr Critchley. This section of the Instructions read as follows:[229]
108.The judge then instructed the jury to delete and ignore these paragraphs and told them that, “Dr Critchley will not be called to give evidence. Therefore any thing and any reference to him is inadmissible as evidence before you. So it is not evidence before you of anything that Dr Critchley is alleged to have said.”[230] 109.As we understand the position, Dr Mainland drafted her final report in which she addressed Dr Critchley’s report as instructed. The prosecution then sought to delete that part of Dr Mainland’s instructions and did not examine her about Dr Critchley’s report. However, Dr Mainland listed it as a document she had considered in drafting her report, and the defence were therefore entitled to cross-examine her on how Dr Critchley’s report had a bearing on her opinions or views. Unmuted CCTV 110.Mr Hui submitted that Dr Mainland emphasised the importance of the deceased’s verbal responses in assessing sedation depth. Accordingly, whether the deceased spoke during the procedure was highly relevant to the defence. Kay, an assistant, testified that the deceased was speaking or slurring and moving her arms and legs from time to time during the operation[231]. The defence sought to cross-examine PW4 on the unmuted CCTV (in relation to the utterances “Don’t press my hand” at 13:44:52, which the prosecution agreed was audible after multiple attempts to listen[232], and “Painful, painful, painful” at 13:48:16), but the judge wrongly refused to allow cross-examination, stating that only the muted version was before the jury[233], despite the unmuted footage being admitted as Exhibit P55[234]. Mr Hui contended that this deprived the appellant of the opportunity to show further evidence of the deceased speaking, and therefore to present her defence fully. 111.On the unmuted CCTV footage, the respondent placed the judge’s ruling in context.[235] The footage, primarily in Cantonese, was partially muted and transcribed into English, as Dr Mainland did not speak Cantonese and the trial was conducted in English. Both the prosecution and defence invested significant effort in agreeing on the transcript. The defence initially agreed to muting any audio not covered by the transcript[236], but later sought to cross-examine Kay on the unmuted footage[237]. Having heard the parties’ submissions, the judge disallowed use of the unmuted footage for cross-examination, as it had not been shown to the jury, and no transcript existed.[238] The respondent argued that this ruling was fair and did not prejudice the defence, and that the defence could not identify any substantive conversation between the deceased and others in the operating room on the unmuted footage. In any event, the defence was eventually permitted, by agreement with the prosecution, to cross-examine Kay [239] on the relevant segment (allegedly showing the deceased say, “Don’t hold down my hand” during the operation), although Kay could not hear it herself [240] and testified that the deceased could not converse meaningfully under sedation[241]. 112.There was no adverse effect from the judge’s restriction of the cross-examination of Kay because the prosecution accepted that the deceased made the two verbal utterances during the liposuction procedure, namely “Don’t press my hand” and “Painful, painful, painful”.[242] Furthermore, the defence referred to the English translation of the Chinese transcript of the audio recording, in which commands in Chinese were repeatedly given throughout the procedure, such as “Don’t move” and “Relax”.[243] It was submitted that this evidence indicated that the deceased was able to respond to instructions, and was relevant to Dr Mainland’s opinion that the deceased was in a state of deep sedation. 113.Taken together, these matters succeed only in part. The restriction on cross-examination about the two verbal utterances on the CCTV did not cause any material prejudice, as the prosecution ultimately accepted that those utterances were made and the jury were invited to proceed on that basis. However, the manner in which references to Dr Critchley’s report were removed from Dr Mainland’s instructions, coupled with the direction that the jury should ignore any reference to him, did curtail the defence’s ability to explore the provenance and development of the expert opinions on which the prosecution relied. This irregularity must be viewed in conjunction with the wider difficulties in the expert evidence previously considered. C. The elements of foreseeability and causation[244] 114.On the issue regarding the element of “foreseeability”[245], it was contended that the judge’s direction, given after her direction on “causation”[246], was liable to confuse the jury, and that this prejudice was compounded by the erroneous direction to the jury that they were entitled to consider multiple breaches of duty of care together in approaching the issue of foreseeability. 115.Mr Hui argued that in a case where the prosecution’s main allegations concern a series of omissions, it was more logical for the jury to consider foreseeability first. This order matched the pleading of the breaches, how the prosecution presented its case, and the defence’s response. The judge’s directions followed the Specimen Directions in Jury Trial revised in 2020, particularly in relation to the elements of foreseeability and causation. We do not consider the sequence caused any unfair prejudice in the circumstances of the case, given that the judge, in her direction on foreseeability, stressed that “foreseeability is to be determined at the time of the breach” and warned against hindsight. [247] 116.Mr Hui further argued that the directions were erroneous and inadequate, particularly as the prosecution did not specify when the deceased faced an obvious and serious risk of death, and Dr Mainland conceded she could not say if any single act would have prevented death[248]. 117.On the issue of the breach of duty that substantially caused death, the charge set out five breaches which correlated with the matters mentioned by Dr Mainland. It appears that Dr Mainland and prosecuting counsel submitted that it was the cumulative effect of these breaches that substantially caused the deceased’s death, whereas the judge directed the jury that it was sufficient if they found that the appellant breached “one, some or all” of them.[249] In submissions before us, the respondent submitted that the prosecution case was that the cumulative effect of all five breaches substantially caused the deceased’s death. 118.This resulted in a serious error at trial because the jury were told they could find the appellant guilty on any one of the breaches, when this was not the prosecution case. The prosecution closing address was a general description of the evidence in the chronological order in which it was presented, without explaining the basis of the prosecution case in respect of the breach or breaches that substantially caused the deceased’s death. However, it appeared that the prosecution’s case was primarily based on Dr Mainland’s evidence regarding the breach of failing to ensure sufficient oxygen supply to the deceased during sedation (particular (ii)(b)). In these circumstances, the jury were presented with a confusing and conflicting set of instructions regarding the breach or breaches of duty that substantially caused the deceased’s death. 119.It will be recalled that the breach of duty of care alleged in the indictment in particular (ii) was: (a) failing to have a qualified person present to administer and monitor the sedation; (b) failing to have sufficient oxygen supply; (c) failing to follow the Guidelines; (d) failing to provide sufficient monitoring after the liposuction procedure; and (e) failing to provide adequate resuscitation. 120.There were evidential issues with each of the particulars, but the prosecution mainly focused on particular (ii)(b) to allege that this was a substantial cause of death. They also contended that the particulars collectively were a substantial cause of death. 121.Prosecuting counsel in her closing address explained the prosecution case in respect of particular (ii)(b):[250]
122.The question arose as to whether the deceased died because of her prone position and the lack of oxygen during the liposuction procedure. Dr Chiao was asked about postural asphyxia caused by the position in which the body was placed. He explained that this condition was when the posture impeded the respiratory movement (breathing movement) of the body. However, there was no post-mortem evidence to support this affliction as a cause of death.[251] As for the lack of oxygen as a cause of death, he explained in his evidence:
123.It was alleged that the judge failed to properly direct the jury on causation, in circumstances where the prosecution’s case relied on Dr Mainland’s opinion of “the additive effect or combination of several failures that together contributed to the situation where death occurred” and “there was a collection of actions and inactions that created the situation where death was a high possibility, probability”[254] and where no cause of death could be ascertained. 124.Mr Hui argued that the judge’s direction that “one, some or all” particulars of breach could establish causation [255] was inconsistent with the prosecution’s case[256] and Dr Mainland’s opinion, both of which required proof that all (or several) failures acted together. The jury were not properly instructed that causation depended on the combined effect of multiple breaches. This was mainly due to the evolving and uncertain nature of the prosecution case. 125.Mr Hui complained that Dr Mainland was not a pathologist able to give evidence on the cause of death and that she wrongly was of the view that the cause of death could be determined by elimination[257]. He was critical that the jury were not reminded of Dr Mainland’s evidence that death was a “high possibility, probability” due to a combination of actions or inactions, raising doubt about whether causation was proved beyond reasonable doubt. He further complained that Dr Mainland’s opinion that the deceased suffered from low oxygen levels was based on her own interpretation of the Mindray monitor alarms and that she testified that the deceased was “not catastrophically hypoxic”. Furthermore, the jury were wrongly instructed that Dr Chiao did not exclude death by hypoxia[258], and there was no reference to Dr Chiao’s finding that there was no evidence of postural asphyxia, contrary to Dr Mainland’s view that low oxygen was due in fact to the deceased prone position. 126.The respondent submitted that the judge reminded the jury that the purpose of seeking the opinion of a plastic surgeon and anaesthetist was to “see whether there is some medical event that’s happened during the surgery”.[259] No further warning or direction was necessary. Furthermore, the defence’s argument that only a pathologist could determine the cause of death was incorrect; in appropriate cases, the jury is entitled to assess this based on all the evidence (HKSAR v Hui Chi Wai and Others[260]). However, Dr Mainland was called to establish, amongst other things, the cause of death, which the defence did not challenge. It is submitted that the judge reminded the jury that Dr Mainland was not a pathologist and could not testify on certain aspects of the cause of death (as a pathologist)[261], but could do so from the perspective of an anaesthesiologist.[262] Moreover, Dr Chiao’s opinion was not incompatible with that of Dr Mainland. 127.In our judgment, the complaint about the basis for conviction was made out. The jury were invited to convict on the basis that “one, some or all” of the alleged breaches might have substantially caused the deceased’s death, even though the prosecution case and Dr Mainland’s evidence were premised on a combination of failures acting together. Coupled with the uncertainty and qualifications in the expert evidence on causation, and the absence of clear identification of which breach or breaches were said to give rise to a serious and obvious risk of death, the directions on causation did not sufficiently equip the jury to apply the correct legal test so that they were sure of the appellant’s guilt for this offence. D. The failure to give a Kevin Brown direction[263] 128.It was alleged against the appellant that she breached her duty of care to the deceased by failing: (a) to have a qualified person to administer and monitor sedation; (b) to ensure sufficient oxygen supply to the deceased during sedation; (c) to follow the requirements in specific paragraphs of the Guidelines; (d) to provide proper and sufficient monitoring after the liposuction procedure to the deceased; and (e) to provide adequate and timely resuscitation to the deceased. 129.Mr Hui contended that the judge failed to give a Kevin Brown direction and failed to sufficiently instruct the jury as to how they should approach their tasks en route to verdict where there were multiple particulars of breach of duty of care alleged, each capable of amounting to gross negligence. In the context of the present case, such a direction was requested[264], but declined[265] (Mak Wan Ling[266]). 130.Mr Hui argued that the standard directions on reaching a verdict[267] were inadequate in these circumstances. The indictment alleged five particulars of breach of duty of care, covering the appellant’s conduct before[268], during[269], and after[270] the operation, each purportedly capable of constituting gross negligence. However, the judge directed the jury to consider whether “one, some or all” of the particulars were proved, without addressing the required degree of unanimity for each[271]. In the absence of a Kevin Brown direction, there was a real risk that the jury was divided as to which particular(s) they relied upon when considering foreseeability, causation, and the grossness of the negligence. 131.The respondent submitted that, although no Kevin Brown direction was given, the judge’s directions, particularly regarding the requirement for proven breaches[272], were adequate and that the absence of such a direction did not affect the safety of the conviction. The prosecution was presented on the basis that all breaches cumulatively caused the deceased’s death, consistent with Dr Mainland’s evidence that the “additive effect or combination of several failures” contributed to the fatal outcome. It was argued that this was not a case where individual particulars in the indictment corresponded to separate offence ingredients or involved different defences, which would require a Kevin Brown direction (R v Chilvers[273]). As this was the sole evidential route to conviction, and there was no cogent challenge or contradictory evidence from the defence, the possibility that the jury accepted only some breaches was not realistic.[274] Accordingly, the conviction should stand even without a Kevin Brown direction (R v Boreman[275]). 132.The prosecution initially put its case on the basis that these five alleged breaches were concurrent causes of the death of the deceased, each of which individually would suffice to amount to gross negligence. This would require the jury to decide which breach was proved and then to consider the elements of foreseeability, causation and grossness of the negligence. Since there were five individual breaches of duty alleged, a Kevin Brown direction should have been given to the jury. The judge directed the jury that “one, some or all” of the five alleged breaches, if proved, would constitute gross negligence.[276] However, it appears the prosecution changed its case by focusing on the cumulative effect of only some of these alleged breaches of duty. 133.We therefore conclude that this ground is also made out. In a case alleging five distinct particulars of breach of duty, each said to be capable of amounting to gross negligence and of contributing to death, the failure to give a Kevin Brown direction created a real risk that different jurors relied on different combinations of breaches when considering foreseeability, causation and grossness. This defect, when combined with the uncertainties in the expert evidence and the problems with causation, materially undermines the safety of the conviction. 134.Those cumulative concerns must finally be viewed in light of the unpleaded but fundamental issue of an unknown cause of death, which lay at the heart of both the pathology and the expert opinion evidence. E. The issue of an unknown cause of death 135.The pathologist’s finding that the deceased’s cause of death was “unascertained” was a fundamental issue in this case. The defence advanced its case on the basis that the cause of death was unknown and that the deceased’s death could not be attributed to a breach or breaches of duty by the appellant. Defence counsel in his closing address to the jury explained:[277]
136.In his concluding remarks to the jury, defence counsel emphasised:[278]
137.R v Henderson, R v Butler and R v Oyediran [279] (together, “Henderson”) concerned cases of “shaken baby syndrome” where the evidence against the defendants was based solely on medical expert evidence. The English Court of Appeal addressed several important issues concerning the reliance on such medical expert evidence in criminal prosecutions. Moses LJ, giving the judgment of the Court, stated that in cases of shaken baby syndrome where the prosecution relies on medical experts to identify a non-accidental injury and the defence offers no alternative cause, the temptation to conclude that the prosecution has proved its case must be resisted, because in this, as in many fields of medicine, the evidence may be insufficient to exclude an unknown cause beyond reasonable doubt (Henderson[280]). 138.Moses LJ observed that a conviction based merely on the evidence of experts can only be regarded as safe if the case proceeds on a logically justifiable basis, including a logically justifiable basis for rejecting or accepting the expert evidence. He emphasised the importance of proper pre-trial management in identifying the real medical issues and enabling the judge to prevent experts from wandering into unnecessary, complicated and confusing detail. He explained that a realistic possibility of an unknown cause must not be overlooked, and that the jury should be reminded of that possibility and instructed accordingly. He stated:
139.Whilst the above statements of principle were made in respect of an area of medical science that was developing and where medical opinions were conflicting, in our view, they apply equally where medical expert opinion is unclear and qualified and where there is a realistic possibility that the cause of death is unknown. It is essential that the medical issues which the jury are to resolve are clear by the commencement of the trial, ensuring that the issues are defined and that the expert evidence, and the sources on which it is based, are also clearly identified (Henderson[281]). We conclude that the way in which the medical expert evidence was addressed and evolved over a period of six years, and ultimately presented at trial, was less than satisfactory. The medical issues were not clearly and fully explained to the jury, and the realistic possibility that the deceased died of an unknown cause was not addressed at all. 140.It is appropriate to examine in detail the decision in Henderson because it puts into context the issue of an unknown cause of death and sets out a number of important general principles regarding medical expert evidence. Shaken baby syndrome cases are those where a baby allegedly died as a result of being deliberately shaken. Whilst there is no external trauma or injury to the baby, a “triad of injuries” – retinal haemorrhages, subdural haemorrhage and encephalopathy – was considered by medical experts to provide a strong pointer to non-accidental head injury. None of the three cases in Henderson was concerned solely with the triad of injuries. In Henderson, the issue was whether there was evidence of injury independent of and additional to the triad of injuries. In Butler, one of the issues was whether the unusual fact of the baby’s recovery after the discovery of retinal haemorrhage indicated a cause other than shaking. In Oyediran, the prosecution alleged a distinct and separate external injury, consisting of a fracture of the baby’s arm.[282] 141.We emphasise that in each of the three cases, as in all cases of shaken baby syndrome, the baby was shown to have suffered internal trauma or injury. In the present case, the deceased showed no trauma or injury, either internally or externally. This is highly relevant to the issue of an unknown cause of death. 142.The key consideration in Henderson was the form and structure of the directions given by the trial judge, Keith J (previously a member of the Hong Kong Court of Appeal and now Deputy High Court judge). The Court commended his directions, noting that he made clear to the jury the issues they had to decide and the rival bases on which they could reject or accept the evidence, adding:[283]
143.The Court dismissed the appeal in Henderson because the trial judge had properly directed the jury on the issue of an unknown cause of death, while in Butler it allowed the appeal because such a direction had not been given. In Oyediran, the Court upheld the murder conviction because of the combination of the severity of the injury to the brain and the fracture to the arm, both due to the appellant’s own deliberate actions. 144.In another subsequent shaken baby syndrome case, R v Arshad [284], the English Court of Appeal applied Henderson in holding that the jury had to consider the realistic possibility of an unknown cause and that special caution was needed where expert opinion in a developing science was fundamental to the prosecution. However, the Court held that those precise terms did not need to be used, provided “the effect of the summing-up must be to make clear that special caution is needed and unknown causes must not be overlooked”. 145.In that case, the Court considered that the jury would have understood about the uncertainty that existed in some areas of medical science and about the possibility of an unknown cause (Arshad [285]). The Court dismissed the appeal, being satisfied that the jury could have been in no doubt that, in a case where medical science was uncertain in the light of the findings made by the doctors, they could only convict if they were sure on the evidence that the death had been caused in the manner alleged and that other possibilities had been excluded (Arshad [286]). 146.The question in the present case, as in Henderson, is whether the directions given by the judge to the jury were sufficient to remind them of the realistic possibility of an unknown cause, since an overall impression can never be a substitute for a rational process of analysis (Henderson [287]). This was not in any way the fault of the judge, but reflected how the prosecution case based on medical expert evidence had been constructed and presented to the jury. 147.Mr Jonathan Man, for the respondent, argued that this was not a case where a direction on an unknown cause was necessary. He accepted that in the present case there was a possibility of an unknown cause, but submitted it was not a “realistic” possibility. With respect, his argument was simply a play on semantics. There was a strong evidential foundation that the cause of death was unknown. On the forensic pathologist’s evidence alone, it was beyond peradventure that the deceased may have died of an unknown cause. He concluded that there was no abnormality or fatal pathology that could have satisfactorily accounted for the cause of death. There was no internal or external trauma or injury to the deceased. Dr Chiao corrected Dr Chan’s opinion as to the cause of death but was not given that opportunity in respect of Dr Mainland’s opinion. Dr Mainland essentially postulated that the deceased died of hypoxia, or the lack of oxygen supply. Dr Chiao testified that he found no signs of hypoxic change, but also explained that it would take several hours of being deprived of oxygen before such signs would be shown. In expressing her opinion, Dr Mainland stated that she could not establish the cause of death with certainty, and she noted in both her report and her evidence certain assumptions and qualifications underlying her opinion. 148.Whilst the judge gave a comprehensive and structured set of directions to the jury, no direction was given that they must consider the possibility of an unknown cause, particularly in the light of the forensic pathologist’s evidence, and that they should only convict if they had excluded that possibility.[288] 149.In expressing her opinion, Dr Mainland stated that she could not establish the cause of death with certainty, and she noted in both her report and evidence certain assumptions and qualifications underlying her opinion. In these circumstances, and in the absence of any clear direction requiring the jury to exclude the realistic possibility of an unknown cause of death before convicting, it cannot be said that the jury’s verdict rested on a sound and logically justifiable basis. Conclusion 150.For these reasons, taken cumulatively, namely the deficiencies in the medical expert evidence and its presentation, the restriction on the use of the references to and the influence of Dr Critchley’s report in relation to the medical expert evidence, the confusion over the prosecution case on whether causation was based on any one or all of the alleged breaches of duty, the absence of a Kevin Brown direction, and the failure to direct the jury on the realistic possibility of an unknown cause of death, we allowed the appeal against conviction, quashed the conviction and set aside the sentence. The respondent made no application for a retrial of the appellant. Regulation of cosmetic surgical and medical services 151.Before leaving this case, we make some brief observations on the regulatory framework for cosmetic surgical and medical services, prompted by the circumstances revealed in the present appeal. 152.The Private Healthcare Facilities Ordinance (Cap 633) was enacted in November 2018 to regulate private healthcare facilities in Hong Kong. In January 2020, the Director of Health, pursuant to section 102 of the Ordinance, issued the Code of Practice for Day Procedure Centres (the Code) to provide standards for all day procedure centres licensed under the statutory regime. The latest edition of the Code was issued in September 2024. It sets out the licensing standards in respect of the governance, staffing, facilities and equipment, service delivery, quality and safety of care, infection control, and other matters related to the operation of day procedure centres providing specialised services set out in Schedule 3 to the Ordinance. Schedule 3 lists the classes of specialised services and their corresponding “scheduled medical procedures” and any exceptions to those procedures. It would appear that some invasive cosmetic procedures may not fall within the ambit of Schedule 3. 153.A series of cases has highlighted instances in which individuals have suffered serious injury or death following invasive cosmetic treatments, often associated with insufficient regulation or inadequate safety requirements. Safeguards for such treatments, particularly when they are provided outside established healthcare settings, are crucial to ensure patient safety and well-being. Consideration should be given to the implementation of specific measures to maintain high standards of care and safety and to protect individuals from potential harm in addition to the safeguards already contained in the Code. These measures could include: (1) a regulatory regime establishing requirements and standards, including enforceable protocols for the performance of invasive cosmetic surgery and other medical procedures, which specifies which invasive cosmetic and medical procedures may only be performed by registered medical practitioners in licensed facilities; and (2) the mandatory registration and accreditation of all establishments and personnel providing invasive cosmetic treatments or medical services to the general public, supported by a clear system of licensing, inspections and sanctions for non-compliance (as discussed in cases such as Chow Heung Wing Stephen). 154.The liposuction procedure carries significant risks of serious and potentially fatal complications, many of which are preventable through strict adherence to proper safety protocols. Given the frequency with which the liposuction procedure is performed, appropriate regulatory guidance should require that it be carried out only by qualified professionals in licensed facilities, under clear protocols for patient safety, pre-operative risk assessment and post-operative monitoring.
Mr Jonathan Man, DDPP and Ms Chan Sze-yan, SPP, of Department of Justice, for the respondent Mr Martin Hui, SC and Ms Sharon Chan, instructed by T C Wong & Co, for the appellant [1] On 9 January 2025, the appellant changed her name from Kwan Hau-chi, Vanessa to Kwan, Vanessa. [2] Contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance (Cap 212). Appeal Bundle (AB), pp 1-3. [3] AB, pp 11, 991-1016. [4] HKSAR v Kwan Hau Chi, Vanessa [2023] HKCA 662, per Zervos JA. [5] New Evidence Bundle (NEB), pp 1-172. [6] The four affidavits dated 2 May 2023, 12 March 2024, 11 December 2024 and 17 July 2025 respectively. [7] R v Chattoo [2012] EWCA Crim 190. [8] R v Jones (Steven) [1997] 1 Cr App R 86, 93; R v Kai-Whitewind [2005] 2 Cr App R 31, at [96] and [97]; R v Meachan [2009] EWCA Crim 1701, at [1] and [23]; and R v Henderson, R v Butler and R v Oyediran [2010] 2 Cr App R 24, at [3] and [4]. [9] HKSAR v Sysoev Igorevich Iurii [2023] 3 HKLRD 20, at [95] and [96]. [10] See section 83V(1)-(4), which read:
[11] R v Broughton [2021] 1 Cr App R 3. [12] R v Kuddus [2019] 2 Cr App R 16. [13] R v Rose (Honey Maria) [2012] 2 Cr App R 28. [14] Broughton, at [5]. [15] HKSAR v Mak Wan Ling (No 2) (2019) 22 HKCFAR 321, at [56]. [16] Re-amended Indictment: AB, pp 1-3. [17] AB, p 878O-P. [18] AB, p 992, at [4]-[5]. [19] AB, p 918M-N. [20] AB, pp 878P, 879G, 899S-900A. [21] AB, pp 883N, 894F-K, 1062. [22] AB, pp 880C-F, 917D-F, 917L-N. [23] AB, p 878M-N. [24] AB, pp 881R-882C. [25] AB, pp 926R-T, 951L-N. [26] AB, p 894O-S. [27] AB, pp 879B-F, 889F-O. [28] AB, p 889F-O. [29] AB, p 897K-T. [30] AB, p 897R-T. [31] AB, p 898C-J. [32] AB, p 898J-O. [33] AB, pp 130K-131B, 897K-O. [34] AB, pp 895A-F, 896R-897O. [35] AB, pp 30Q-31H, 44A-45U. [36] AB, pp 879B-G, 889K-P, 894O-895J. See also AB, p 18, at [18]. [37] AB, pp 878P-879B, 879H-K, 880H-881R. [38] AB, pp 882B-G, 883G-O, 924P-S. [39] AB, pp 923N-924O, 952B-F, 957H-I. [40] AB, pp 924S-925M. [41] AB, pp 882E-G, 925K-M. [42] AB, pp 924T-925C. [43] Unless otherwise stated the time references are in hours. [44] AB, p 424H-L. [45] AB, p 665N-P. [46] AB, p 455G-H. [47] AB, p 934N-S. [48] AB, pp 457T-458B. [49] AB, p 775S. [50] AB, pp 882 H-J, 945S. [51] AB, p 960A. [52] AB, p 960A-D. [53] AB, p 884H-J. [54] AB, p 882L-M. [55] AB, pp 882N, 969M-N. [56] AB, p 882N-Q. [57] AB, p 882S. [58] AB, p 882S. [59] AB, p 998M-P. [60] AB, p 964G-I. [61] AB, p 851D. [62] AB, p 974D. [63] AB, p 964M-Q. [64] AB, p 974E-I. [65] AB, pp 882T-883B, 893U-894E. [66] If the deceased was under conscious sedation, the appellant would not have breached particulars (ii)(a)-(b), ii(c) except paragraphs 4, 7.5 and 10 of the Guidelines about pre-operation assessment and documentation and (ii)(d). [67] As defined under the Guidelines. See AB, p 1323, AB, pp 885I-J, 934B-G. [68] AB, p 913F-J. [69] AB, p 847M-U. [70] The respondent made the point that whilst the defence counsel did put to Dr Mainland that the appellant had checked the airway and vital signs of the deceased, the same suggestion was not put to the four assistants. See AB, pp 720I-722A. [71] AB, p 848E-L. [72] AB, pp 737E-Q, 958F-K. [73] AB, p 885B-H. [74] The autopsy report. See AB, pp 1062-1065. [75] AB, pp 1064-1065. [76] Grounds 5 and 8. [77] NEB, pp 150-172. [78] NEB, p 156. [79] NEB, p 163. [80] NEB, p 172. [81] AB, pp 1504-1511. [82] AB, pp 923S-924O, 927C-E. [83] AB, p 1510, at [19]. [84] AB, p 1511, at [19]. [85] AB, pp 949K-P, 956O-957D, 961H-M. [86] AB, pp 9171-U, 918F-919A. [87] AB, p 949M-P. [88] AB, p 946D-J. [89] AB, p 956A-C. [90] AB, p 953Q-S. [91] AB, pp 1212-1218. [92] AB, pp 1220-1227. [93] AB, pp 1228-1241. [94] R v Rudling [2016] EWCA Crim 741. [95] AB, pp 1235-1237. The defence case was that Dr Mainland had been influenced in her opinion and had tailored her evidence to fit the prosecution’s allegations and its case. See AB, pp 937R-938K. [96] AB, pp 1242-1248. [97] AB, p 1248, at [6.1]. [98] AB, p 1248, at [6.2]. [99] AB, pp 1249-1250. [100] AB, pp 1251-1314. Dr Burd’s report and supplementary report were dated 23 April 2021 and 22 July 2021 respectively. [101] AB, p 1257. [102] AB, pp 1259-1313. [103] AB, pp 1314-1316. [104] AB, p 1260. [105] AB, pp 1311-1313. [106] In her evidence, Dr Mainland explained that she had identified some editorial issues and had deleted certain words from her reports, such as the word “reckless”. See AB, p 596F. [107] AB, pp 1512-1517. The supplementary comment was a response to the defence expert opinion provided by Dr Burd. [108] AB, pp 1338-1340. Conversely, Dr Chan gave evidence regarding sedation, although, it was noted by the judge that as a plastic surgeon he was not a doctor skilled in managing patients under sedation. See AB, p 946C-J. [109] AB, pp 339S-340F, 373F-G and P-T and 375I. [110] AB, p 901S-U. [111] AB, p 902I-N. [112] AB, p 901Q-R. [113] AB, pp 1323, 395O-399B. [114] AB, pp 913B-N, 914A-I, 923A-B, 923S-924B. [115] AB, p 699N-T. [116] AB, pp 661H-M, 941C-N. [117] AB, pp 929B-M, 931A-N. [118] AB, p 1324, at [3.4]. [119] AB, pp 949F-950K. [120] AB, p 968R-U. [121] AB, p 969H. [122] AB, p 969H-I. [123] AB, pp 969G-K, 646I-O. [124] AB, pp 644U-645B. [125] AB, p 476Q-S. [126] AB, p 516A-Q. [127] AB, p 968A-O. [128] AB, p 1120, at [6.1]. [129] AB, pp 815F-816E. [130] AB, pp 803B, 823I-J, 830N and 833U. [131] AB, p 826P-Q. [132] AB, p 814Q-R. [133] AB, pp 814Q-815E. [134] AB, p 826Q. [135] AB, pp 804Q-805K. [136] AB, pp 805K-806S. [137] AB, p 823I-S. [138] AB, p 879A-B. [139] AB, p 915M-N. [140] AB, pp 948E-H, 1324.
[141] AB, pp 955I-O, 1328.
[142] AB, pp 961T-962E, 1325-1326.
[143] AB, pp 939T-940B. [144] AB, pp 965U-970P. [145] AB, p 968B-E. [146] AB, p 969F-G. [147] AB, p 966G-I. [148] AB, p 965E-K. [149] AB, p 940A-B. [150] AB, pp 800U-801E. [151] AB, pp 1209-1329 (Exhibit D4, bundles of emails between prosecution and Dr. Mainland). [152] For example, the appellant submits that the wordings in Dr Mainland’s conclusion at [6.6] (AB, p 1121) is similar to Rudling, at [18]. [153] AB, p 902B-C. [154] Specimen Directions in Jury Trials, Volume 2: 2020, Chapter 110. See AB, pp 901Q-903T. [155] AB, p 903F-H. [156] AB, pp 762H-773G. [157] AB, pp 937O-939L. [158] AB, pp 939J-L, 854R-855I, 862J-863C. [159] AB, pp 939U-940B. [160] AB, pp 937U-H, 940J-L. [161] AB, p 947A-G. [162] HKSAR v Chow Heung Wing Stephen [2022] 1 HKLRD 671, at [166]-[167]. [163] AB, pp 517N-520N. [164] AB, p 902B-C. [165] AB, pp 953J-954F. [166] AB, p 1205, at [5(iii)]. [167] AB, p 1120, at [6.1]. [168] AB, p 740A-C. [169] AB, pp 951T-952B (transcript of the audio recording at 12:17:02). [170] AB, p 399D-H. [171] AB, p 951G-M. [172] AB, p 913G-M. [173] AB, p 913N-T. [174] AB, pp 957U-958B, 958F-K, 962J-L, 962O-R, 963E-O. [175] The Appellant’s Written Submission, Annex II. [176] AB, p 757M-N. [177] AB, pp 750F-P, 757B-K. [178] AB, pp 883T-U, 952C-G. [179] AB, p 399C-H. [180] AB, p 1067, at [3], pp 1104-1105, at [5.3]. [181] AB, p 507H-T. [182] AB, pp 478M-481E, 385F-T. [183] AB, pp 525E-527O. [184] AB, pp 762H-773G. [185] AB, pp 18-19. [186] AB, p 879C-G. [187] Report: AB, pp 1079, 1098 and 1154; evidence: AB, pp 422C-D and 487E. [188] Report: AB, p 1081; evidence: AB, pp 415K-O, 422Q-R and 596I-597T. [189] Evidence: AB, pp 421A-H and 422S-423S. [190] AB, pp 861T-862L. [191] AB, p 855C-E. [192] AB, p 855E-F. [193] Evidence: AB, pp 403G-P and 492M-Q. [194] Report: AB, p 1115; Evidence: AB, pp 529U-530D. [195] AB, pp 685Q-686E. [196] AB, p 859G. [197] AB, p 859B-F. [198] AB, pp 398S-399H. [199] Evidence: AB, p 503H-L. [200] Report: AB, p 1083; Evidence: AB, pp 469L-472S. [201] AB, pp 867P-868R. [202] Evidence: AB, pp 396T-397I. [203] Evidence: AB, p 459C-G. [204] Report: AB, p 1085; evidence AB, pp 470T-471H. [205] Evidence: AB, pp 385A-D and 480J-N. [206] AB, p 622O-P. See also AB, p 952Q. [207] AB, p 860A-G. [208] AB, p 860G-N. [209] AB, p 469R-S. [210] AB, p 469S-U. [211] AB, p 470B-D. [212] AB, pp 644A-645B. [213] AB, p 860A-N. [214] Report: AB, p 1086. [215] AB, pp 619E-620M. [216] AB, p 861L-S. [217] AB, pp 1204-1205. [218] R v Sellu [2017] 1 Cr App R 24, at [141], [142] and [152]. [219] Ground 4. [220] AB, pp 92G-93K, 373F-G, 373P-T, 375I. [221] NEB, pp 153, 160, 169. [222] NEB, p 156, at [5]. [223] AB, p 1120, at [6.1]. [224] AB, pp 92G-93I. [225] AB, pp 92G-93L. [226] HKSAR v Kissel [2014] 1 HKLRD 460, at [142]; HKSAR v Nancy Ann Kissel FAMC 63/2013, at [14]; R v Yousry (1916) 11 Cr App R 13, 18. [227] AB, pp 627N-628P. [228] AB, pp 92G-93K. [229] AB, pp 1127-1128. [230] AB, pp 372K-373S. [231] AB, pp 277F-I, 286R-287B. See also AB, p 845M-U. [232] AB, p 291C-H. [233] AB, pp 294S-295D. [234] AB, p 15, at [18]. [235] The Respondent’s Written Submission, at [40]-[50]. [236] AB, p 45P-R. [237] AB, pp 288A-295J. [238] AB, pp 29ID-295F. [239] AB, p 295L-Q [240] AB, p 297C-S. [241] AB, pp 250R-251H, 275D-P, 277D-I, 286R-287D. [242] AB, p 809I-K. [243] AB, pp 856A-858O. AB, p 18 (Admitted Facts (2), at [8]: Chinese transcript (exhibit P55D) and English translation (exhibit P55E)). [244] Grounds 6 and 7. [245] AB, pp 910B-N, 970Q-972J (the judge’s direction on foreseeability). [246] AB, pp 965R-970P (the judge’s direction on causation). [247] AB, pp 971I-K, 928E-R. See also Broughton, at [5]. [248] AB, p 516A-G. [249] AB, p 965I. [250] AB, pp 804R-805K. [251] AB, pp 349A-350C. [252] AB, pp 334M-335O. [253] AB, pp 359L-360Q. [254] AB, p 516E-F. [255] AB, pp 908N-0, 909I-K, N, 910 H-I, 965H-I. [256] The Appellant’s Written Submission, at [57]-[58], where the appellant cited certain parts of the prosecution’s opening address “the sum total of these different breaches of her duty” (AB, p 108L-N) and “a combination of all this caused the deceased’s death” (AB, p 129B-C). [257] AB, p 967L. [258] AB, p 969G. [259] AB, pp 508L-509F [260] HKSAR v Hui Chi Wai and Others, unrep., CACC 78/1999, 20 July 2001, at [38]-[54]. [261] AB, pp 508O-S, 1105 (such as “the underlying conditions of partial coronary artery occlusion, potential cardiac myositis and bronchopneumonia were the main cause of death”). [262] AB, p 509D-H. [263] Ground 9. [264] AB, pp 784I-793R. [265] AB, pp 792M-793P. [266] Mak Wan Ling, at [34]-[44]. [267] AB, p 979D-K. [268] Particular (ii)(c). [269] Particular (ii)(a), (b), (c). [270] Particular (ii)(c), (d), (e). [271] AB, pp 9091-K, 909N-O, 910H- I, 971A, 971E-F, 971I-K. [272] AB, pp 909G-O, 910H-L, 965G-J, 971E-Q, 973I-K. [273] R v Chilvers [2022] 1 WLR 1089, at [47]-[70]. [274] See the prosecution’s opening address (AB, pp 108N, 128K-129C), prosecution closing address (AB, p 814Q-R), the defence’s closing address (AB, pp 840B-I, 867M-875Q) and the judge’s summing-up (AB, pp 883C-885Q, 908M-O, 908T-910Q, 965G-966B, 970Q-971Q, 973B-U). [275] R v Boreman [2000] 2 Cr App R 17, 25E-30C. [276] AB, p 909H-M. [277] AB, p 841A-K. [278] AB, p 876D-J. [279] R v Henderson, R v Butler, R v Oyediran [2010] 2 Cr App R 24, at [217] and [218]. [280] Henderson, at [1]. [281] Henderson, at [212]-[215]. [282] Henderson, at [7]. [283] Henderson, at [76]-[79]. [284] R v Arshad [2012] EWCA Crim 18, at [15]. [285] Arshad, at [20]. [286] Arshad, at [22]. [287] Henderson, at [220]. [288] AB, pp 965U-970P. | |||||||||||||||||||||||
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