HUI WEI LEE v. THE MEDICAL COUNCIL OF HONG KONG

H E A D N O T E

Disciplinary charge against a doctor - Charge arose out of what passed between her and a patient - That formed part of a course of dealings of which what passed between the doctor and her colleagues about that patient was likewise a part - Whole course of dealings constituted the res gestae - What passed between the doctor and her colleagues was therefore admissible as part of the res gestae

IN THE COURT OF APPEAL

1993, No. 114
(Civil)

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J U D G M E N T

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Bokhary, J.A.:

1. This is an appeal, pursuant to section 26 of the Medical Registration Ordinance Cap.161, from an order made by the Medical Council.

2. The appellant is a registered medical practitioner. In May last year, she appeared before the Council on a disciplinary charge. The charge was one of misconduct in a professional respect.

3. At the conclusion of the inquiry on May 27, 1993, the Council, finding the charge proved, orally announced its order. The order was that the appellant's name be removed from the register for a period of 18 months. A week later, a copy of the order as drawn up was served on the appellant under cover of a letter dated June 3, 1993, from the Registrar of the Council.

4. In this Court, three main contentions were raised on the appellant's behalf. The first is that the Council wrongly excluded relevant evidence. The second is that the finding of guilt against the appellant is generally unsafe or unsatisfactory. And the third is that the penalty imposed upon her is manifestly excessive.

5. We are at this stage dealing with the appeal in so far as it relates to what might be called "conviction". If the appellant succeeds thereon, that will be the end of the matter.

6. Before coming to the particulars of the charge on which the appellant was found guilty, it is necessary to mention subsections (3) and (4) of section 47A of Offences against the Person Ordinance, Cap.212. It is laid down in subsection (3) that:

" Except as provided by subsection (4), any treatment for the termination of pregnancy must be carried out in a hospital or clinic maintained by the Crown or declared by the Director of Health by notice published in the Gazette to be an approved hospital or clinic for the purposes of this section."

Subsection (4) provides that:

" Subsection (3) shall not apply to the termination of a pregnancy by a registered medical practitioner if 2 registered medical practitioners are of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman."

7. The charge is framed in these terms:

" That on 1 November 1988 you, being a registered medical practitioner did agree to perform an operation to terminate a pregnancy on Woman Detective Police Constable 11146 Leung Yee-ling at your clinic, Hui Wei Lee Clinic at 28 Wei Yan Street, Tai Po, New Territories such clinic not being an approved hospital or clinic pursuant to Section 47A(3) of the Offences Against the Person Ordinance, Chapter 212, Laws of Hong Kong; and that in relation to the facts alleged, you have brought disrepute to the profession and have been guilty of misconduct in a professional respect."

8. It is not suggested that the appellant's clinic was an approved hospital or clinic for the purposes of subsection (3) or that the exception provided under subsection (4) applied in the present case.

9. Shortly stated, the "undercover" officer, WDPC Leung's evidence was to this effect. On November 1, 1988, at the appellant's clinic, on the occasion of the last of WDPC Leung's three visits to that clinic, the other two visits having been on October 10 and 31, 1988, the appellant agreed to perform an illegal abortion on her for $2,000, and had gone so far as to instruct her to lie down on a bed for her to be anesthetized for that abortion.

10. The appellant denied agreeing to perform an abortion on WDPC Leung. As to instructing her to lie on a bed, this is what the appellant said in answer to her own counsel:

" The reason for my asking her to lie on the bed, I was trying to cheat her into permitting me to try to find out what was wrong with her, because in a clinic some children might also be cheated of taking some tablets which they claim to be bitter. But, in any event, I could not carry out an abortion at all under those circumstances in my clinic."

Under cross-examination, this exchange took place:

"Q. You see, I suggest to you, Dr Hui, that on the 1st November 1988 you did agree to perform an abortion upon Madam Leung believing that she was pregnant.

A. In fact, I did not formally promise her to do so.

Q.that, what does it mean? You didn't write Can you explain it down, or what?

A. I only wanted to cheat her into lying on the bed so that I could carry out a test on her."

11. The evidence which was excluded was of telephone conversations between the appellant and two doctors, one of them a colleague of hers who used the same clinic and the other a surgeon to whom she from time to time referred patients. Their testimony, it was said, would have been of telephone conversations with the appellant after WDPC Leung's second visit to the appellant's clinic but before the last one. And the suggestion was that these gentlemen, if called, would say that the appellant had said to them that she had a strange patient whom she suspected was not really pregnant but might have a psychological problem, and that she intended to induce her to submit to a physical examination with a view to seeing what the real problem was.

12. Apart from the testimony of those two gentlemen, the excluded evidence would of course have included the appellant's own evidence of the conversations. But I daresay that it was their evidence rather than hers which probably mattered the most in the present connection. Certainly, the relevant ground of appeal is directed to their evidence.

13. Before the Council, the submission made on behalf of the appellant was that the evidence in question was admissible to rebut a challenge to her consistency. Before us, Mr Thomas, who now leads for the appellant but did not appear before the Council, renews that submission, but argues principally that the evidence was admissible as part of the res gestae. The debate before the Council was of a somewhat confused nature. And the ruling given by the Chairman on behalf of the Council, through no fault of the Chairman since the Council were acting on legal advice, is perhaps also somewhat confused. It is in these terms:

"After deliberation the Council agrees with the Defence Counsel that there is no direct challenge of fabrication; in other words, you said it was indirect rather than direct and therefore we disallow the calling of witnesses."

14. Why an indirect challenge is different for present purposes from a direct challenge is not - and cannot be - satisfactorily explained. But that may not really matter: for it seems to me that the real basis on which this evidence should have been admitted is this. It was clearly part of a single course of dealings between the purported patient and the alleged abortionist, which course of dealings spanned three visits by the former to the latter's clinic.

15. Counsel for the disciplinary prosecution had, it may be noted, shown considerable interest in that course of dealings. She showed it by asking questions of the appellant directed to the paucity of her notes of those three visits and as to whether or not she had ever consulted any colleague about a cyst of which WDPC Leung had complained.

16. The suggestion made by those questions was that the appellant had been keeping the matter dark because she had, to put it colloquially, been up to no good.

17. It seems to be perfectly legitimate to take the view - and indeed it may be inevitable to take the view - that a doctor, in the management of his or her patients, will sometimes consult colleagues. The excluded evidence was to be a part of the explanation which the appellant was offering for rather strange conduct on her part, which certainly called for an explanation. What passed between her and her colleagues in regard to WDPC Leung would be a part of a course of dealings. And what passed between her and WDPC Leung was likewise a part of that course of dealings. The whole course of dealings constituted the res gestae here: in other words, the relevant set of events. In the circumstances, the evidence which was excluded was admissible as part of the res gestae. Its exclusion was therefore wrong in law.

18. Now, if evidence which was wrongly excluded was incapable of making any difference to the result, then of course its exclusion would not affect the result. But it seems to me quite impossible to say that this evidence could not have made any difference to the result. It might have done so. Therefore, its wrongful exclusion is fatal to the Council's finding against the appellant and to the order made against her pursuant to that finding. Why we refused to allow the appellant to adduce additional evidence pertaining to the layout of her clinic no longer matters. She succeeds on the first contention i.e. that relevant evidence was wrongly excluded. We saw nothing in the second one i.e. that the finding is generally unsafe or unsatisfactory, on which we did not call upon the respondent. The question of penalty no longer arises.

19. In my judgment, this appeal must be allowed so as to set aside the Council's finding and order.

Mortimer, J.A.:

20. I agree. It is not seriously disputed that the appellant in this case gave the woman police constable the impression that she was agreeing to carrying out an illegal abortion for payment. Illegal because it was to be carried out in the doctor's clinic without a second opinion and the clinic was not an approved hospital or clinic.

21. There was before the Council ample evidence upon which it could come to the conclusion that the doctor had been guilty of professional misconduct. Indeed, the doctor's own evidence on this matter was unusual if not extraordinary. She said that she thought the patient was strange and had a psychological problem. Having come to that conclusion, she said that she determined to take a syringe filled with a saline solution and to cheat her into thinking that she was to have an anesthetic so that she could carry out a physical examination to determine her condition. Her case throughout was that she may have given the impression that she was going to carry out an abortion, but in fact she never intended so to do.

22. Although the police raided the clinic immediately after the doctor held the syringe, there was no evidence before the Council of the contents of that syringe. That evidence could have been of considerable importance. The result, however, is that the syringe could well have contained a saline solution; and there was no evidence, save for the circumstances, to the contrary.

23. The real issue therefore was what the doctor intended to do when she was approaching the so called "patient" with the syringe. On this matter, she gave evidence herself; but she wished to call evidence of what she had said to two other doctors, one whom she worked with and one whom she did not. That evidence of what she said has been summarized as follows:-

"I have this strange patient who I suspect is not really pregnant but may be has some psychological problems. What I intend to do is to induce her to submit to a physical examination and see what the real problem is."

24. Those statements were said to have been made in between two visits of the "patient" to the doctor accused in this case. Those two visits were 24 hours apart. I agree that that evidence was admissible. It was admissible as part of the res gestae in the particular circumstances of this case, because it was part of the professional conduct of the doctor when dealing with this patient and was relevant to the treatment that this doctor was giving and intended to give, the evidence was that she had consulted other doctors in this way about the patient.

25. So the evidence having been wrongly excluded - and not considered by the Council - how could that evidence have affected the real issue in the case, which was what was the doctor's intention? Could this evidence have affected the result?

26. The test on page 221 D in Libman v. General Medical Council [1972] AC 217 is relevant. Lord Hailsham said:

"Where a criticism is made of the legal adviser's account of his advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision."

27. In my judgment, although the evidence against the doctor was indeed strong, the fact that this evidence was excluded could have had the effect of changing the decision of the Council. Of course, it may not have done but it could have had that effect. In these circumstances, I too would allow the appeal.

Godfrey, J.A.:

28. I also agree. It is the general rule that the evidence of a witness cannot be corroborated by proving statements to the same effect previously made by him : see The Queen v. Oyesiku [1971]56 Crim. App. Reports 240 at p.245. But there are exceptions to this general rule, one of which is that evidence may be led of statements which form part of the "res gestae". Now what are the "res gestae"? In Sir Frederick Pollock's note (at p.120) to the report of Homes v. Newman [1931]2 Ch 112, he offers the following comment on the phrase : "Or, as recent learned writers prefer, 'res gesta' in the singular. Either way it means in English neither more nor less than part of the story." It seems to me that the statements made by the appellant to the two doctors here were all "part of the story". That being so the evidence ought not to have been excluded. Since it was excluded, there was, in my judgment, something which went wrong here, so that this Court is entitled and indeed bound to interfere.