CHOW SIU SHEK DAVID v. THE MEDICAL COUNCIL OF HONG KONG

1999 HCAL No. 32

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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Introduction

1. This is an application for judicial review. It relates to a doctor whose name was ordered to be removed from the Register of medical practitioners. In due course, he appealed to the Medical Council for the restoration of his name to the Register. That application was refused, and that is the decision challenged.

The facts

2. The Applicant, Dr. David Chow Siu Shek, qualified as a doctor in 1979. Thereafter, he practised as a registered medical practitioner in Hong Kong. In November 1990, he was convicted in the High Court on two counts of conspiracy to defraud. He was fined and sentenced to a total of two years' imprisonment. Eventually his case was considered by the Medical Council ("the Council"). The Council ordered Dr. Chow's name to be removed from the General Register of registered medical practitioners ("the Register") for three years. That order was made in August 1994, but it was to take effect on the date of its publication in the Hong Kong Government Gazette. Dr. Chow appealed against the Council's order to the Court of Appeal. In due course, that appeal was dismissed, and the Council's order was eventually published in the Gazette in June 1995.

3. The period during which Dr. Chow's name was to be removed from the Register expired in June 1998. A few months later, Dr. Chow applied for the restoration of his name to the Register. However, two things had happened since the Council had made its original order in August 1994:

(i) On the very day before the order had been made, Dr. Chow's two clinics had been visited by police officers accompanied by a pharmacist and a doctor attached to the Department of Health. At both clinics, they found that registers for recording the receipt and supply of dangerous drugs had not been kept in the form specified in the First Schedule to the Dangerous Drugs Regulations (Cap. 134). Some time later in September 1995, Dr. Chow pleaded guilty to 19 charges of failing to keep a proper register, and he was fined $3,000.00 on each charge.

(ii) A month or so after the Council had made its original order, the Department of Health withdrew for three years Dr. Chow's authority to possess, supply and manufacture oral preparations of various dangerous drugs. During that period, he was not permitted to prescribe oral preparations of those drugs either.

4. The hearing of Dr. Chow's application for the restoration of his name to the Register took place at a meeting of the Council in February 1999. The facts which had occurred since its original order in August 1994 were brought to the Council's attention. After hearing from Dr. Chow's counsel, the Council refused the application for the restoration of his name to the Register. In announcing the Council's conclusions, the Chairman of the Council said:

"This Council views the complaint relating to the conviction on 29th September, 1995, to be particularly serious from a professional point of view. This Council has considered all matters urged upon it by the Applicant but notes from the evidence before it that having been released from prison in 1993, Mr. Chow was warned after an inspection conducted by the Department of Health on 7th June, 1994. Despite proper advice given, no improvement was observed during searches conducted on 22nd August, 1994. The quantity and the variety of dangerous drugs kept without proper record poses a serious threat to society."

The only complaint about the decision which was made in the Notice of Application for leave to apply for judicial review was that the decision "was irrational and/or a decision to which no reasonable tribunal should have come. The refusal indicates that the Respondent failed to give sufficiently full and proper consideration to the submissions made by counsel for the Applicant in respect of this matter."

The relevant statutory provisions

5. Section 21(1) of the Medical Registration Ordinance (Cap. 161) ("the Ordinance") provides, so far as is material:

"If ... the Council is satisfied that any registered medical practitioner -

(a) has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment .... the Council may, in its discretion -

(i) order the name of the registered medical practitioner to be removed from the General Register; or

(ii) order the name of the registered medical practitioner to be removed from the General Register for such period as it may think fit ...."

It was pursuant to the power in (ii) that the Council ordered Dr. Chow's name to be removed from the Register for three years.

6. The provision in the Ordinance under which Dr. Chow applied for the restoration of his name to the Register was section 25(3). So far as is material, that provides:

"Any person whose name has been removed from the General Register under the provisions of this Ordinance .... may apply to the Council for the restoration of his name to the General Register and the Council in its absolute discretion and after such inquiry and subject .... to such conditions, as it may consider desirable, may either allow or refuse the application ...."

7. When I considered Dr. Chow's application for leave to apply for judicial review, it occurred to me that these provisions might give rise to another ground of challenge. In a note attached to Form CALL-1, I wrote:

".... in addition to the grounds relied on, the application appears to me to raise another issue, unless there is an express provision relating to the issue which I have not found. The issue is whether section 25(3) of the Medical Registration Ordinance (Cap. 161) has any relevance to a case in which a registered medical practitioner's name has been removed from the General Register for a specified period pursuant to section 21(1)(ii), rather than for an unspecified period pursuant to section 21(1)(i). Unless expressly provided for, it is arguable that when the three years had elapsed in June 1998 since the Applicant's name had been removed from the Register, the Applicant was automatically entitled to have his name restored to the Register, unless fresh disciplinary proceedings had been commenced and adjudicated upon in the meantime."

The Notice of Application has now been amended to enable this point to be argued.

The applicability of section 25(3)

8. Mr. David Fitzpatrick for the Council argued that even when the name of a practitioner has been removed for a specified period, he is nevertheless required, despite the expiration of that period, to apply for the restoration of his name to the Register under section 25(3). That enables the Council to decide whether, notwithstanding the expiration of the period, the practitioner should have his name restored to the Register. That construction of the regulatory framework enables the Council to exercise its supervisory function over the profession. It is also consistent with the language of section 25(3), which confers the right of applying for the restoration of his name to the Register on "any person whose name has been removed from the General Register under the provisions of this Ordinance." That right is not conferred only on those persons whose names were ordered to be removed from the Register without any limitation of time. Indeed, Mr. Fitzpatrick argued that the interpretation for which Dr. Chow contends would produce a surprising scenario. It would mean that, in June 1998, Dr. Chow's name would automatically have been restored to the Register, only for it to be removed from the Register within a few months when the Council came to consider the impact of the events which had occurred since its original order.

9. I cannot go along with these arguments. They have the effect of removing much of the force of the time limit on the original order. If the Council has an absolute discretion to refuse to restore a practitioner's name to the Register, even though the time limit on the original order has expired, what was the point of setting a time limit on the original order in the first place? I accept entirely that subsequent conduct on the part of the practitioner, or the subsequent discovery of events which occurred prior to the date of the original order, may well justify the Council in concluding that the practitioner's name should not be restored to the Register. But that does not have to be achieved by requiring the practitioner to apply for the restoration of his name to the Register pursuant to section 25(3), notwithstanding the expiration of the time limit on the original order. It can be achieved by the commencement of fresh disciplinary proceedings and by new orders under sections 21(1)(i) or 21(1)(ii).

10. For these reasons, I find that when the three years had elapsed in June 1998 since Dr. Chow's name had been removed from the Register, he was automatically entitled to have his name restored to the Register, unless fresh disciplinary proceedings had been commenced and were adjudicated upon at the time when his name would otherwise have been automatically restored to the Register. In other words, section 25(3) does not apply to a case in which a practitioner's name has been removed from the Register for a specified period pursuant to section 21(1)(ii), rather than for an unspecified period pursuant to section 21(1)(i), unless, possibly, the practitioner is applying for the restoration of his name to the Register prior to the expiration of the period during which it was ordered to be removed.

The consequence of this finding

11. The question then is: what should be done now? On one view, I should quash the Council's decision not to restore Dr. Chow's name to the Register on the basis that he was automatically entitled to have his name restored to the Register in June 1998. The difficulty about taking that course is that if Dr. Chow had not himself applied for the restoration of his name to the Register, fresh disciplinary proceedings based on the events which had occurred since the original order might have been taken against him. Everyone thought that the question of whether Dr. Chow's name should be restored to the Register would be decided on Dr. Chow's application for the restoration of his name to the Register, whereas it should have been decided in fresh disciplinary proceedings.

12. It is not for me to be judgmental or to apportion blame for what happened, although Mr. Graham Harris for Dr. Chow has candidly accepted that Dr. Chow's solicitors had raised with him whether an application for the restoration of Dr. Chow's name to the Register was appropriate. The fact is that if the Council's decision not to restore Dr. Chow's name to the Register is quashed, Dr. Chow's name must automatically be restored to the Register, even though the Council (a) took the view in February that his name should not be restored to the Register, and (b) might have required fresh disciplinary proceedings to be taken against him if it had appreciated that his name should automatically have been restored to the Register in June 1998. For reasons which I shall come to, the question of what should now be done is, in my opinion, very much dependent on whether the Council's decision in February 1999 can be successfully challenged on its merits.

The merits of the Council's decision

13. The present case is not an appeal from the Council's decision in February. No right of appeal exists from a refusal to restore a medical practitioner's name to the Register. That is why the decision is being challenged by way of an application for judicial review. In the absence of illegality or procedural impropriety, the only basis on which the decision made by the Council in February can be successfully challenged on its merits is if the decision was one which the Council could not reasonably have reached. But the guidance which the courts have given in the context of statutory appeals from disciplinary sanctions imposed by professional bodies is not entirely unhelpful. Thus, the findings of the Council will not be interfered with "unless it can be shown that [its] findings ... were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence has been misread" (Lord Hailsham L.C. in Libman v General Medical Council [1972] AC 217 at p.221E-F), and the sanction imposed by the Council will not be interfered with unless it is "plain that the sentence imposed was inappropriate" (Lord Mackay of Clashfern L.C. in Peatfield v General Medical Council [1986] 1 WLR 243 at p.251E).

14. Mr. Harris also appeared for Dr. Chow at the hearing in February 1999. He told the Council then that the drugs to which the 19 charges related had all been legitimately purchased, they had all been stored in conditions of security, and when they were supplied to patients, the details were recorded on the patients' record cards. It was a case, said Mr. Harris, of "bad bookkeeping", of the records not being kept in the manner prescribed by law.

15. In these circumstances, it is necessary to look with some care at the documents which were placed before the Council to see the way in which the records were deficient. The relevant document was the statement of brief facts which had been prepared for use in the Magistracy. That shows that the records kept by Dr. Chow did not record

(a) the identity of the persons to whom the drugs were supplied;

(b) the addresses of the companies from whom the drugs were purchased; and

(c) the number of drugs retained by Dr. Chow after each supply had been made.

In my view, the Council would have been entitled to conclude that these omissions from the records represented something more than "bad bookkeeping". An examination of the records would not have revealed the patients to whom the drugs were supplied. That could only have emerged from an examination of each of the patients' record cards. Speedy access to records identifying the patients to whom the drugs had been supplied was particularly important in the light of Dr. Chow's practice. Mr. Harris informed the Council that "a substantial percentage of the patients who consulted [the] practice were addicts with a drug abuse problem".

16. Mr. Harris accepted that the refusal of the application to restore Dr. Chow's name to the Register could only be successfully challenged on its merits if the Council could not reasonably have concluded that Dr. Chow's name should not have been restored to the Register then. Having regard to the generally accepted tariff for offences relating to the failure to keep proper records, it cannot be said that the Council's decision not to restore Dr. Chow's name to the Register then was one which the Council could not reasonably reach. It may be that the time would soon come when such a conclusion could not reasonably be reached, but I cannot say that the Council acted unreasonably in concluding that that time had not arrived by then.

The relief

17. In the light of that, I return to what the consequences should be of the Council's refusal to restore Dr. Chow's name to the Register when, in the absence of fresh disciplinary proceedings, he had been entitled to have his name automatically restored to the Register. It can safely be said, I think, that if in February 1999 the Council had been deciding whether to remove Dr. Chow's name from the Register for a further period in the context of fresh disciplinary proceedings rather than deciding whether to restore his name to the Register, it would have made an order which had the same effect as the order it in fact made in February, namely, an order which, for the time being at any rate, would have resulted in Dr. Chow's name not being restored to the Register.

18. The grant of relief on an application for judicial review is entirely discretionary, though, of course, the discretion must be exercised judicially. In the circumstances, the course which I propose to take is to make no order on the application. The application is not dismissed because the decision challenged should not have been made. However, that decision will not be quashed because a decision having the same effect, for the time being, would have been made if fresh disciplinary proceedings had been commenced.

19. That does not leave Dr. Chow in limbo. It will be open to him, when he deems the time to be right, to apply to the Council for the restoration of his name to the Register. I do not think that there will be any problem over the Council's jurisdiction to hear such an application. After all, for the purpose of deciding what relief to grant today, the court has been treating the hearing in February as if it had been fresh disciplinary proceedings rather than an application for the restoration of Dr. Chow's name to the Register.