Objectivity v Subjectivity—Gross Negligence Manslaughter Revisited: HKSAR v Mak Wan Ling (2019) 22 HKCFAR 321

Published date01 October 2021
Date01 October 2021
Subject MatterCase Notes
Case Note
Objectivity v Subjectivity—
Gross Negligence
Manslaughter Revisited
HKSAR v Mak Wan Ling (2019) 22 HKCFAR 321
Duty of care, manslaughter by gross negligence, clinical negligence, mens rea, recklessness
The facts were straightforward—Dr Mak Wan Ling (the ‘appellant’) was accused of having injected a
contaminated blood product into her patient during a beauty treatment known as ‘CIK/AI therapy’,
causing the death of the patient.
Following trial, the appellant was acquitted on the basis that the law of gross negligence manslaughter
(‘GNM’) in Hong Kong differs from the position in England and Wales. As regards the English position,
the House of Lords in R v Adomako [1995] 1 AC 171 established that there are four essential elements in
the offence of GNM, namely, (i) the accused owed a duty of care to a deceased, (ii) that duty was
breached, (iii) that breach of duty caused the death of the deceased and (iv) the conduct of the accused
amounts to gross negligence from an objective perspective in the ‘reasonable man’ test (Mak Wan Ling
at [6] and [20]). This formulation was followed in subsequent cases in England and Wales (eg R v Misra
and Srivastava [2005] 1 Cr App R 21; R v Rose (Honey Maria) [2017] EWCA Crim 1168; R v Kuddus
(Mohammed Abdul) [2019] EWCA Crim 837). In particular, following R v Rose and R v Kuddus,the
English Court of Appeal acknowledged that, in addition to establishing a breach of duty, the breach
of duty must carry a ‘serious and obvious risk of death’ (Rose at [94] and Kuddus at [69]). None-
theless, the trial judge in Mak Wan Ling held that regarding the ‘reasonable man’ test, in addition to
the objective test, the prosecution must also prove that the subjective state of mind of the accused
was culpable.
This ruling was reversed in the Court of Appeal, but appeal was brought to the Hong Kong Court of
Final Appeal (the ‘CFA’). Before the CFA, the central issue was whether there is such an additional
requirement in relation to Adomako of proving the accused’s subjective state of mind.
Held, dismissing the appeal, in the judgment delivered by Ma CJ and Ribeiro PJ with the concur-
rence of Fok and Cheung PJJ and Lord Reed NPJ, the aforementioned issue should be answered in the
negative after considering the law of GNM in England and Wales, Australia and Canada and academic
This decision is to be welcomed notwithstanding the academic criticisms of Adomako for the following
Three propositions were put forth in the CFA to challenge the Adomako position. First, the test of
gross negligence is circular since the jury is left with the two tasks of first defining the scope of the
offence as a matter of law, then deciding whether the facts of a specific case warrant a determination of a
crime under the scope it has defined as a matter of fact. As such, the offence is not defined by the judge
The Journal of Criminal Law
ªThe Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/00220183211027064
2021, Vol. 85(5) 409–412

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