DR LEUNG KAN PUI v. THE MEDICAL COUNCIL OF HONG KONG

IN THE COURT OF APPEAL

1994, No. 193
(Civil)

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J U D G M E N T

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Mortimer, J.A.:

1. This is an appeal by an appellant doctor against an order of the Medical Council of 28th September 1994, removing his name from the medical register for one year on a charge of having been convicted of offences punishable with imprisonment. The background is this.

2. In June and July 1989, three undercover police officers visited the doctor's clinic in Tuen Wan. On eight occasions he prescribed for them 10 tablets of Rohypnol or Halcion. The drugs are subject to the Pharmacy and Poisons Ordinance, Cap. 138. He kept clinical records relating to each visit. These properly recorded the supply, the date, the name and address of each 'patient' but on six occasions failed, in breach of s.28(3A)(c) of the Ordinance, to record the dosage and the duration. He would have recorded 'as and when necessary'.

3. On 7th November 1989 he appeared in the Tuen Wan Magistrates Court and was convicted of eight offences of unlawful sale of a Part 1 poison to the police officers and six offences of failing to keep a proper record. On appeal, the eight convictions of unlawful sale had to be quashed. Section 28(1)(a) of the Ordinance provides that it is not an offence if the sale is 'for the purposes of medical treatment' and having heard evidence both from the doctor and expert witnesses, the magistrate found this issue in his favour.

4. The magistrate regarded the six remaining offences of failing to keep a proper record contrary to s.28(3A)(c) of the Ordinance as trivial and technical. Given his clear professional and criminal record, she granted him an absolute discharge.

5. Over five years after the commission of the offences the doctor appeared before the Medical Council. Originally he was charged both under s.21(1)(a) of the Medical Registration Ordinance, Cap. 161 of having been convicted of six offences punishable with imprisonment and also three further offences under s.21(1)(b) of misconduct in a professional respect. The latter offences related to the sale of drugs and were not proceeded with. So the doctor was dealt with by the Medical Council in respect of the remaining charge of having been convicted of six offences of failing to keep proper records.

6. At the hearing the doctor accepted the validity of this charge. The evidence put before the Council included the magistrate's reasons for verdict and Duffy J's judgment on the appeal. These contained information about the more serious offences of selling the drugs of which the doctor was acquitted as well as the offences upon which he had been convicted. The Council was warned by their legal officer to 'ignore allegations not specifically covered by the charge proved'. It is to be noted however that counsel for the doctor felt it necessary to deal extensively in mitigation with matters - by then irrelevant - concerning the visits of the undercover police officers and the sale of drugs to them.

7. As I have said, the Council ordered that the doctor should be removed from the register for one year. He appeals against this order on the grounds that having regard to the nature of the convictions, his previous good character and penalties imposed in other cases, the order was manifestly excessive and out of tune with the evidence upon which the Council was entitled to act.

8. The reluctance of this Court to interfere with a 'sentence' imposed by the Medical Council is well known. As I said in Ng Mei Sin v the Medical Council of Hong Kong (unreported) 1994 No. 165 (Civil) at p.3:

"The medical profession is entrusted with regulating its own affairs and its own members. The Medical Council is uniquely qualified to assess the proper sentence to be imposed upon its members for professional misconduct - whether brought before the Medical Council as this case on a conviction, or in other cases under s.21(1)(b) where other professional misconduct is alleged. It must be a better qualified tribunal to deal with the professional implications of that conduct than this Court. Generally, therefore, we must assume that the Medical Council is a better judge of the appropriate sentence. However, this Court has powers to interfere. It will only interfere where the sentence imposed is plainly and obviously inappropriate and out of tune with the evidence upon which the Medical Council is acting."

9. In this regard, we have been invited to consider the penalties imposed by the Council in other cases over the past five years. Broadly, these indicate that the order in this case is severe when compared with cases in which prima facie the conduct has been more blameworthy. But without the precise facts of these individual offences, the records could be dangerously misleading. Without further information upon them, for my part, I would give them little weight.

10. I turn to the nature of the offences upon which the doctor was convicted in the Magistrates Court. Section 28(3A) of Cap. 138 refers to medicine in s.28(1)(a). This is:

"... a medicine supplied by a medical practitioner for the purposes of medical treatment ..."

Such medicine is the only relevant medicine for the purposes of the section which provides:

"... there shall be entered in the record of treatment ... the following particulars -

(a)	the date on which the medicine was supplied;
(b)	the name and address of any person to whom or on whose behalf it was supplied; and
(c)	the ingredients of the medicine and the quantity, dosage and duration of supply." (my emphasis)

The doctor admitted to the magistrate that although the record was entirely correct in other respects, he had not included dosage and duration. His excuse was that as he could only have put 'as and when necessary' this entry would not have served any useful purpose. On the magistrate's view of the seriousness of this offence, she granted an absolute discharge. Of course, the Medical Council is not bound in any way by the magistrate's opinion as to the seriousness or otherwise of the convictions charged but the magistrate's view is at least of some relevance for it may reflect society's view of how the conviction of the doctor will bear upon the standing of the medical profession.

11. For my part, I am of the opinion that any failure to keep a clinical record in accordance with s.28(3A) of the Ordinance is itself serious. It is every doctor's duty to ensure that he complies but if these convictions have some more serious implication for the medical profession than is readily apparent this was not ventilated at the hearing nor - in accordance with the Medical Council's usual practice - were any reasons for the penalty given.

12. If there is some serious feature which no one has been able to point out to this Court or the Medical Council and which was not put against the doctor at the hearing or in the order which was made, then that is a matter which this Court has to bear and must in spite of that seek to fulfil its duty.

13. For my part, I have reluctantly come to the conclusion that the sentence of removal from the register for one year was out of tune with the evidence upon which the Council was entitled to act. On all the information before this Court, I am driven to the conclusion either that the Medical Council did not fully appreciate that the offences of failing to make a proper record are limited to medicine which is prescribed by the doctor for the purposes of medical treatment, or the doctor's conduct in prescribing the drugs to the police officers was taken into account when it should not have been. I know of no other explanation for what otherwise is, in my judgment, a manifestly excessive penalty for this offence. Serious though the offence is.

14. In these circumstances justice requires this Court's intervention. I would not vary the penalty of removal from the register for 12 months which, in my judgment, was justified by the offence, but I would say that in all the circumstances the application of the order should be suspended for the period of one year, not to come into effect subject to the appellant doctor not being found either to have been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment, or to have been guilty of misconduct in a professional respect.

15. I would allow this appeal and substitute this order. But before leaving this case, I would respectfully add a few words about two matters. First, the delay in bringing the proceedings before the Medical Council to a hearing was in this case without any proper explanation. It is, in my judgment, unacceptable for a professional disciplinary body such as the Medical Council to hold charges over the head of one of the members of the profession for this length of time. Secondly, where a charge is brought against a doctor under s.21(1)(a) only for having been convicted of an offence punishable with imprisonment, and this charge has professional misconduct implications and there is no charge under s.21(1)(b) of professional misconduct, fairness requires that the accused doctor should know the full nature of the case he has to meet. This can be achieved at least in part by ensuring that only relevant evidence is placed before the Council and also that any serious feature of the case not immediately obvious is ventilated at the hearing. To this end, the Council should receive appropriate guidance from their legal officer.

Power, V.-P.:

I agree with the reasons that have fallen from my brother Mortimer J.A. I concur that the appeal must be allowed. I also agree that the order should be suspended for a period of one year.

Godfrey, J.A. :

The Medical Council is put in place to serve the interests of the medical profession, and of the public. The courts are put in place to serve the interests of justice; and it is for this purpose that there is conferred on this court a right, and a duty, to review decisions, both as to findings of guilt, and sentence, of the Medical Council. It will, I hope, continue to be rare that a decision of the Medical Council will so outrage a proper sense of justice as to compel this court to intervene. But, from time to time, this will, unfortunately, happen. On matters of sentence, even experienced trial judges sometimes go wholly wrong. We are all human, and prone to error; even the Medical Council. In this case, I am quite satisfied, for the reasons given by Mortimer J.A., that the present case is one in which the interests of justice do require us to interfere with the sentence passed by the Medical Council upon this doctor, charged, certainly, over a serious matter but not with professional misconduct. I, too, would substitute for the sentence passed by the Medical Council the sentence which he has proposed.