DR KONG CHING BOON v. THE MEDICAL COUNCIL OF HONG KONG

CACV 25/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 25 OF 2011

(On appeal from the Order of the Medical Council of Hong Kong made on 18 January 2011)

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BETWEEN

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J U D G M E N T

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Hon Cheung JA :

The charge and the penalty

1.  The appellant was convicted on his own plea by the Medical Council of two charges, namely,

1)   He, being a registered medical practitioner was convicted at the Kowloon City Magistrates’ Courts on 24 April 2009 of two counts of an offence punishable with imprisonment, namely failing to keep a register or records of a dangerous drug, contrary to Regulations 5(1)(a) and 5(7) of the Dangerous Drugs Regulations made under Dangerous Drugs Ordinance (Chapter 134).

2.  He failed to report to the Medical Council of the said convictions within 28 days of the convictions, contrary to section 29 of the Code of Professional Conduct for the Guidance of Registered Medical Practitioners issued by the Medical Council of Hong Kong.

2.   The Medical Council imposed the following penalties against the appellant :

Charge 1

3.  1) The appellant’s name be removed from the General Register for a period of 12 months.

2) The appellant’s removal be suspended for a period of 2 years from the date of publication of the order in the Gazette, subject to the condition of satisfactory inspection and audit by a supervising doctor to be appointed by the Medical Council in accordance with the following terms :-

(a) The supervising doctor shall conduct random audit of the appellant’s practice with particular regard to the keeping of dangerous drugs registers.

(b) The audit should be conducted without prior notice to the apellant.

(c) The audit should be conducted at least once every 6 months within the period of suspension.

(d) During the audit, the supervising doctor shall be given unrestricted access to all parts of the appellant’s clinic(s) and the relevant records which in the supervising doctor’s opinion is necessary for proper discharge of his duty.

(e) The supervising doctor shall report directly to the Council the findings of the audit at the end of the 6^th, 12^th, 18^th and 24^th month respectively from the date of publication in the Gazette of this order.  If any irregularity is observed, the supervising doctor shall report such irregularity as soon as possible.

Charge 2

4.  An order that the appellant be reprimanded.  It is to be noted that the appellant should have reported the conviction to the Medical Council within 28 days of the conviction on 24 April 2009.  He only informed it on 9 June 2009, there was a delay of 16 days.

5.  The appellant now appeals against the penalties.

Background leading to the two charges

6.  The appellant is a medical practitioner and operated a group of medical practice known as GHC Medical Centres with a head office in Mongkok, Kowloon and various other branches in Hong Kong.

7.  According to the brief facts of the case which were admitted by the appellant in the Magistracy, on 4 September 2008, staff from the Department of Health conducted an inspection at the head office.  The appellant told them that he was the only registered medical practitioner at the premises, and all dangerous drugs were kept in his custody.  The appellant showed the staff the dangerous drugs kept at the premises, namely 941 tablets of Epilon tablets (among them, 58 tablets were expired), and 38 capsules of expired Domar capsules.  When asked to produce the register of dangerous drugs, the appellant stated that there was no prescribed dangerous drug record or register maintained.  He stated that all dangerous drugs were returned goods from the affiliated GHC Medical Centres, either because they had expired, or because a doctor had left a particular medical centre.  He also stated that GHC Medical Centre placed orders of dangerous drug with the head office, and the head office would normally relay the order to a supplier. However, if that drug was in stock at the head office, the head office would deliver that drug to the medical centre instead.

8.  Thereafter the appellant was issued with two summonses for failing to keep a register in accordance with regulations 5 and 6 of the Dangerous Drugs Regulations with respect to the two types of drugs found in the head office.

9.  He pleaded guilty to the two summonses in the Magistracy and was fined $24,000.  He reported the convictions to the Medical Council on 9 June 2009.  On 19 February 2010, the Council issued a Notice of Inquiry to the appellant.  He pleaded guilty at the disciplinary inquiry held on 18 January 2011.

Application to adduce new evidence

10.  The appellant applied to adduce new evidence before this Court and was refused.  The new evidence which was not put before the Medical Council was purported to be movement records of the two types of drugs found in the Head Office.  Despite being asked expressly at the inquiry whether he had records relating to the drugs, the appellant chose not to produce any records.  While the appellant had produced some documents to the Preliminary Investigation Committee, many of the new documents were not produced.  The appellant contended that the new documents were previously given to his then lawyers who chose not to produce them.  This cannot be a satisfactory explanation for the non production in the first place.  The documents ought to have been produced at the inquiry so that a proper evaluation of these documents could be made by the Medical Council.

Merits of the appeal

11.  This Court supports the Medical Council’s approach that a serious stand should be taken against medical practitioners who failed to keep records or proper records of dangerous drugs. The rationale is clear : the privilege of practising and prescribing medicine carries with it the corresponding obligation of keeping a proper record of the drugs under a doctor’s possession and custody.  As observed in Lau Koon Leung v. Medical Council of Hong Kong [2006] 3 HKLRD 225, removal of the name of the doctor from the General Register is normally the penalty for the present offence.

12.  In this appeal, the Court is concerned with the length of removal and the period of suspension of the order for removal.

13.  Appeals from the Medical Council go directly to the Court of Appeal.  While this Court, will of course, pay the appropriate deference to the views of the members of the Medical Council who judged their own profession, this Court must at the same time ensure that the penalty imposed is not manifestly excessive.

14.  Two principles are engaged. The first is that those who impose penalties must give recognition to genuine grounds of mitigation.

15.  A second equally salutary principle is that those in a similar position should, as far as possible, be treated alike.

16.  Underlining these two principles is the notion of fairness which by itself is a matter of common sense. 

17.  The Medical Council stated that other than his honest plea, there is no mitigation of weight.  I disagree.  The practice was for the head office to place orders for drugs on behalf of the branch clinics which had requested the drugs.  The drugs were delivered by the suppliers directly to the branch clinics or in respect of small quantities from the stock of the head office.  Proper records of the drugs were kept by the branch clinics.  The records of the drugs in the head office consisted of the invoices for the purchase of the drugs and records of the branch clinics which would include those drugs that were eventually returned to the head office because either a doctor in the branch clinic had left the group or the drugs had expired.  The omission in the present case was keeping a register of the drugs that were returned to the Head Office.  While this was accepted not to be a defence to the first charge, it was clearly a ground of mitigation which distinguished the case from the otherwise blatant situation of a medical practitioner not keeping any register of the drugs.  The presence of the expired drugs further mitigated against the abuse associated with the absence of a register.  There was no allegation that there was any sale of the drugs by the head office without prescription.

18.  The quantity of drugs is another mitigating factor.  I reviewed many decisions on penalty imposed by the Medical Council in Lau Koon Leung.  I observed that there were apparent inconsistencies in the penalties imposed when the quantity of drugs was taken into account.  I remain of the same view.

19.  I accept that the quantity of drugs is not the only factor to be taken into account in considering sentence and I am not suggesting that there should be a tariff of sentence based on the amount of drugs involved in each case.  However, the amount of drugs that were found not to be properly registered must reflect the extent of the culpability or abuse involved in a case.  The following examples of penalties referred to Lau Koon Leung show that the appellant’s removal of one year from the General Register when the quantity of drugs was 979 tablets is manifestly excessive.

1)	Dr. Young (1998)	6-month removal	(1,590,000 tablets)
2)	Dr. Tsang (2001)	2-month removal	(18,362 tablets)
3)	Dr. Yeung (2003)	3-month removal	(7,800 tablets)

20.  The Medical Council had suspended the appellant’s removal for a period of two years subject to the appellant complying with the stated conditions.

21.  The suspension of a removal order is intended to mitigate the harshness of the penalty.  However the length of the suspension must be based on some rationale.  I had suggested in Lau Koon Leung some of the relevant factors to be taken into account in considering the period of removal.  These factors are equally applicable to a consideration of the length of suspension :

1)   the reason for not keeping a proper record,

2)   the quantity of drugs of which a proper record has not been kept,

3)   the nature of the drugs,

4)   is there evidence the doctor is selling addictive drugs without prescription for profit?

22.  Again there is observed inconsistencies in the length of suspension of a removal order in the decisions of the Medical Council, for example,

1)	Dr. Sung (1998)	One-year suspension of a three-month removal order	(6,800 tablets)
2)	Dr. Chan (1996)	Two-year suspension of a three-months removal order	(2,846 tablets)
3)	Dr. Ching (2000)	One-year suspension of a six-month removal order	(3,000 tablets)

23.  Mr. Mark Chan, counsel for the respondent, submitted that the penalty in the present case was to ensure that large medical groups should observe the stringent requirement of keeping a drug register.  There was certainly no evidence that there has been rampant abuse by large medical groups which might call for a deterrent sentence.  More importantly, what was submitted was not the basis of the Medical Council’s decision.  The Medical Council merely stated that the appellant being the person in charge of the whole medical group should be particularly careful in ensuring with the requirement.  To that, I have discussed the Medical Council’s failure in properly taking mitigating factors into account.

Conclusion

24.  The proper penalty in the present case should be a six-month removal which is to be suspended for one year subject to the conditions imposed by the Medical Council.

25.  Accordingly the appeal is allowed and the existing penalty is substituted by the one I have indicated.

Hon Kwan JA :

26.  I agree with the judgment of Cheung JA and the penalty that he proposed should be imposed in substitution.

27.  This court is mindful that it is not apposite to compare penalties in other disciplinary cases involving like charges, as if they were sentences imposed in criminal cases for dangerous drugs offences where the courts would consider guidelines on the starting points for different types and quantities of drugs.  Nevertheless, there is a stark disparity between the penalty imposed here and those imposed in other cases as noted by Cheung JA.  This is one of the rare instances that we must intervene, despite giving all due respect to the judgment and the margin of discretion of the Medical Council.

Hon Lam J :

28.  I agree with the judgments of Cheung JA and Kwan JA. Mr Chan informed the court that the Medical Council was aware of the penalties in other cases in the deliberation of sentence for the present case.  In the light of the substantial objective disparity between the sentence imposed on the appellant and the other cases, if the Medical Council considered there was justification for the same (for instance on a ground similar to that advanced by Mr Chan in defending the sentence in this court, see para. 23 of the judgment of Cheung JA), this should at least be canvassed when the Council gave its reason for the sentence.  Had the Council done so, this court could assess whether the sentence is manifestly excessive and disproportionate giving due regard to the view of the Council as professional regulator on such factor.  As my Lord said, the Council had not done so in the present case.  It is not for Mr Chan to speculate or supplement the reasons given by the Council.  Therefore, the present case has to be decided without any consideration of that factor.