The Queen v. Ma Shun Tak
Read the full judgment text of HCCC 5/1980 on BabelCite. This High Court CFI judgment was delivered on 10 March 1980.
1. The following is an extract from the summing up to the jury in a charge of murder.
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HCCC000005/1980 IN THE SUPREME COURT OF HONG KONG HIGH COURT CRIMINAL CASE NO. 5 OF 1980 -----------------
----------------- Coram: Addison, J. Date of Judgment: 10 March 1980 ----------------- JUDGMENT ----------------- Causation - summing up to the jury 1. The following is an extract from the summing up to the jury in a charge of murder. 2. A person is guilty of murder if without lawful justification or excuse he kills another either intending to kill him or to do him grievous bodily harm. 3. There must be no lawful excuse for the killing and this is perhaps the crux of this whole case. 4. It is a lawful excuse to kill another in self-defence. Therefore I shall have to tell you in clear terms what constitutes self-defence. 5. Before I do that I must go back one step because no one can be guilty of killing another if his act did not kill the other person. So right from the start you must be satisfied so as to be sure that the act of the accused caused the death of the deceased. This is why you have heard so much medical evidence in this case. 6. The defence contends among other things that the evidence in this case is such that you cannot be sure the deceased died from aspiration of blood coming from the injury caused by the accused to the deceased's throat. 7. You will recall that was the opinion of Dr. Yip, the Senior Forensic Pathologist. 8. The defence called Professor Ong who gave a conflicting opinion and so, in this case you have conflicting medical evidence. Each is an expert and where you have a conflict between experts - which is not all that unusual - then you have to resolve it using your common sense. 9. It is for you to determine whether the evidence of Professor Ong causes you to entertain doubts as to the accuracy of Dr. Yip's evidence. If that is so then you may accept the testimony of Professor Ong and assume the deceased died from aspiration of blood coming from the source suggested by Professor Ong. 10. I am not going to decend into detail right now. Later I shall assist you with their evidence. All I seek to do at the moment is to tell you what the law is in the matter. But their basic dispute is that whereas Dr. Yip concluded the quantity of blood exuded came from the 2 cm. long injury, Professor Ong thought otherwise. 11. He gave you his opinion. There were, according to him 2 possible sources for the blood which caused asphyxiation. These were, he said, from blood vessels in the neck and not from the wound and he said the bleeding from the blood vessels may have been caused either by:
12. There is no dispute between these 2 experts that death arose from aspiration of blood - which as you know means asphyxiation by reason of blood getting into the lungs and choking one to death. 13. The experts do not disagree that if the blood came from the wound then the wound would have been the cause of death. They profoundly disagree as to where the source of the blood came from. 14. Professor Ong said the blood did not come from the wound or from the operation wound. He gave 2 possible sources and of those 2 he thought a dislodging of the tube the more probable. 15. Now I am not concerned at the moment to find out how it was the deceased died. What I am concerned with is whether the accused caused the deceased's death. What does that mean - "causing another's death"? So, assuming the deceased did die from aspiration of blood coming from one of the ways suggested by Professor Ong can it still be said the accused caused his death? What test is there to help you decide this point? 16. We are now into the field of causation about which much may be said. We are not going to get caught up with a hen and the egg exercise. Now neither the prosecutor nor the defence suggest the doctors were in the slightest degree negligent. Accept that for the moment, members of jury, as being true. The question is: "Was the death the result of the act of the accused or was it from a completely independent act not linked with the accused?" 17. This is the question you have to decide. 18. The prosecution must prove the accused's act caused the deceased's death. It is not for the accused to show it did not. You must be satisfied on this point beyond reasonable doubt. 19. Let's look first of all at causation. 20. If I invite a man to dinner and on the way he is involved in a car crash and dies you would not say I had caused his death. Again if a person is injured, and, on being taken to hospital in an ambulance, a crane falls on the vehicle and crushes him to death, you would not say the man who injured him in the first place caused his death. 21. The reason why you would say he did not cause his death would be because of the intervention of an event totally unconnected with the initial act which breaks the chain of causation. 22. Do you think the chain of causation was broken here, members of jury? 23. Let's take the case of a person being sent to hospital for treatment. Suppose A strikes B who is taken to hospital and there it is found he needs a blood transfusion. Suppose through gross negligence the nurse gives him blood of the wrong grouping from which he dies. You could not say that A caused B's death. It is true A caused him to be sent to hospital for treatment but he did not cause B's death. The chain of causation was broken by this overwhelming new cause. 24. Gross negligence - and I am not talking about just mere negligence - introduces a break in the chain of causation rendering the accused not responsible for the killing of the deceased. That is the case where gross negligence intervenes. The negligence is so gross as not to continue the chain of causation, for example, the giving of blood of the wrong grouping. 25. Suppose there was an act of simple negligence on the part of the hospital staff which causes death. What then is the position. The law is this:
26. Therefore if there is gross negligence in medical treatment the chain of causation may be broken but not if it is ordinary negligence. 27. But Mr. Hu for the defence says: "We do not seek to say the hospital has been negligent at all. We claim they have not been negligent. We say the death arose independently of the injury inflicted by the accused." There was, he says, an act of God. No one was negligent. 28. Let us therefore now focus our minds on this point. 29. What the law says is this and I shall again read to you on the passage which Mr. Hu read to you last Friday:
30. For the accused to be responsible, the original wound must be an operating and substantial cause of death. Substantial here means something more than a trivial cause of death: it must contribute something towards the death but it need not be the sole cause. 31. Now the question for you under causation is this: Are you satisfied beyond reasonable doubt that it was the injury to the deceased's throat which ultimately caused death and was that injury a substantial and operative cause? 32. Let us now look at the realities of the situation. 33. It is not in dispute the deceased had to be operated upon. That is admitted by all the experts. It is not in dispute a tube had to be used. There is a dispute between Dr. Tang and Dr. Wong whether a cuffed tube should have been used but Professor Ong saw no improper medical treatment in using a non-cuffed tube. Leaving aside this question of cuffed or non-cuffed tube for the moment it is agreed a tube had to be employed to help breathing. 34. Now the object of the operation was to assist the deceased to recover and reduce his chances of sustaining greater injury. 35. You were told every operation has its own complications and inherent risks. There is always the likelihood of something going wrong somewhere. There can always be the twist of fate or unexpected complication. 36. If a tube is inserted in the body, the body, as you heard, tries to reject it as it does with all foreign bodies. If the tube is rejected either by the patient moving too much or the tape coming untied or for some other reason the patient may be placed in a hazardous position. 37. Would you not think that if the tube does slip out then this is a step in the chain of causation appearing in the picture during the post-operative period? The operation should never have been carried out - that would be one thing - but where such an operation is necessary, as you have here, and has its own inherent risks, would you not think that if the risk arose that it was part and parcel of the original wound which was still operating? This is the point you have to decide. 38. Operations can have complications. We all know that. A surgeon always balances the risk in deciding whether to perform an operation. 39. If the complication is one which may occur as a hazard of the operation itself and such operation was made necessary by the injury inflicted by the accused I would have thought as a matter of common sense that the chain of causation would not have been broken but you decide this. 40. Do you not think the surgeon knew a tube would be used and that there was always a likelihood of it popping out in which case it would have to be put back in again? There would always be a danger, would there not, in the loose end of the tube scoring a vein in the area. 41. Ask yourselves this question, members of jury. Has the prosecution proved beyond reasonable doubt that the original wound to the neck was still an operative and substantial cause of death and had not been relegated into the background by another overwhelming cause which made the original wound merely its setting and just so much history? If the answer is, "Yes, the injury to the throat was still operating", then the chain of causation would not be broken. 42. Was the chain of causation broken? I should have thought you would have little doubt in finding the original wound still operated but that is a matter for you to decide. 43. Before I turn from this aspect let me deal with causation from the point of view of negligence. 44. You may think, though I do not for one moment suppose you will, that the doctors are covering up or concealing negligence on the part of the hospital or its staff. You may feel that inadequate attention was given to the deceased. You may think he might not have died had better medical attention or treatment been given to him. 45. You are the persons to find the facts. You may think, though I do not take this view, that a cuffed tube should have been used. Suppose you think there was negligence on that score. 46. What then is the position? 47. The law is this: If the medical treatment or its absence killed the deceased quite independently of the wound and was grossly negligent (for example by giving a wrong and dangerous drug which should never have been given or by giving him no treatment at all when his condition called out for it) then the wound would be the setting for and not the cause of death. On the other hand if the medical treatment or lack of it killed the deceased then the accused will be responsible in law for the death if the treatment was merely negligent. 48. Looking at the factual situation no one has suggested the medical staff were negligent. The use of a cuffed or non-cuffed tube is, as you have been told a matter of judgment or preference. There is not a scrap of evidence before you to suggest a metal tube ought never to have been used; in fact the evidence is to the contrary. 49. As to inadequate care there was evidence of attendants being present and of Dr. Lo being sent for at 5.20 a.m. and of the efforts he made to save the deceased's life. 50. So ask yourselves first of all whether you are satisfied, even if you think the bleeding came from either of the 2 causes suggested by Professor Ong, that the wound was still an operating and substantial cause of death. That you must decide, members of jury.
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