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Just to recap; I have been looking at the Reasons for Sentence in the case of HKSAR and Kwan Hau chi, Vanessa. The verdict had been declared: “guilty”. Now, on 4 October 2021, the Hon D’Almada Remedios J is going to present her review of the case and the factors she has taken into account when deciding the sentence. I am referring to an official document which is in the public domain. The case reference is HCCC 200/2018. It is a shameful document, but we must all share in that shame.

I am looking at the section, “The defendant’s culpability”. In Para 58. The Judge writes, “In sentencing the defendant it is necessary for me to have regard to the defendant’s culpability. The facts of this case are so serious as to warrant an immediate custodial sentence.”

The Judge lays out the “facts” in Para 59 (i) – (viii). So far, in the preceding blogs I have cast considerable doubt on the legitimacy of “facts” (i) – (vi). In this blog I want to look at the last two items because now, I do have genuine concerns about a breach of that contract of trust, the Duty of Care.

“(vii)   There was no post-operative monitoring whatsoever. Once Lee was sutured the Mindray machine was detached whilst Lee was still under sedation and unconscious.

(viii)    The defendant left Lee in the operating room with medically untrained assistants whilst Lee was still sedated and unconscious in a prone position after a procedure that lasted about 3 hours.”

This was an extraordinary case and never, ever, in my professional life have I been asked to alter my expert opinion by a Judge, or a Department of Justice or by an Opposing Council. The first report I submitted, which I reserve the right to place in the public domain in due course, must have scared them “shitless” (of note, I have just been informed by my software grammar coach that this language may be offensive to some people). It is descriptive of the response of people who are suddenly confronted with “severe prejudice”. I placed “the crime” at the level of the State, not the Individual. I gave a context to the indictments that rendered them exactly what they were, worthless. I placed the DoJ on notice to explain why a previous case, with conduct far more egregious, had been allowed to “disappear”. That case exposes the influence of money and power on Justice. The flaw in the plan was to expect that no-one would review the “expert opinions” quoted by the coroner as he made his final decision. An absolutely classic case of gross negligence manslaughter, that “disappeared”. But then I had the temerity to include my opinion on the differences between the medical concept of Duty of Care and the legal concept.

It made me realise that Hong Kong is in the East. Bargaining is in the blood. In the first report you should give nothing away. “Full disclosure” is a legal game of chicken, not an ethical principle. The law is full of games. Discovery? But back to the point.

There is a difference, a very big difference, between knowing of a risk and ignoring it and not knowing of a risk. In the field of medicine, we accept gaps and lapses in knowledge. Ignorance is a defence. But the Law has been presented with a flawless, ‘reasonable’. A committee concept created by a group of opinionated “experts”. This is very much the central issue with the Dr Mak case, but it is also a very important peripheral issue in the case of Dr Kwan.

We are tiptoeing into a very delicate area of life: assumptions. We make them all the time. We assume that love will last (or what is the point?) “We assume”. How is that different from, “we assess” or “we judge” or “we evaluate”? From an old friend Graeme Perks via Lorraine Abercrombie in Nottingham, “to assume” is to make an “ass” out of “u” and “me”.

Did Dr Kwan knowingly leave an unconscious patient under the care of staff who had no experience of unconscious patients? Or did she make some assumptions? If so, were the “assumptions” reasonable?

There is a difference between the Medical concept of the Duty of Care and the Legal concept of the Duty of Care.

In the next blog I want to briefly comment of paras 60 to 69. Para 69 is a classic in Legal hyperbole.

“The defendant’s conduct fell so far short of what could reasonably have been expected of her that such conduct was so exceptionally bad such that the jury found her conduct required criminal punishment. This was an abysmal failure of her duty of care incumbent on her and showed such high disregard to the life and safety of Lee.”

Andrew Burd (Prof)

The Chinese University of Hong Kong.

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