DR. RODERICK LO AND ANOTHER v. THE MEDICAL COUNCIL OF HONG KONG

CACV 274/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 274 OF 2011

(On Appeal from the Order of the Medical Council of Hong Kong

made on 21 November 2011)

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J U D G M E N T

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Hon Macrae JA (giving the judgment of the court):

1.  The two appellants, Dr Roderick Lo and Dr Szeto Yiu Kwai, each faced one charge of misconduct in a professional respect before a disciplinary inquiry of the Hong Kong Medical Council (the Council).  That inquiry was spread over some six hearing days.  For the purposes of this judgment, we shall refer to each appellant by the designation used at that inquiry, namely D1 and D2.

The charges and verdicts

2.  As against D1, the charge alleged that:

“From 18 September 2007 to 24 October 2007 he, being a registered medical practitioner, disregarded his professional responsibility to his patient YIM Kwan Shan (the patient) in that, after the rectal resection operation was performed on the patient on 18 September 2007, he failed to provide proper post-surgical care to the patient which resulted in or contributed to the patient’s suffering from post-surgical complications.”

3.  In respect of D2, the charge alleged that:

“In or around September 2007 he, being a registered medical practitioner, disregarded his professional responsibility to his patient YIM Kwan Shan (the patient) in that:

(a) he failed to assess the extent and the difficulty of a rectal resection in the patient’s case and to make the appropriate pre-operative precautions and/or preparations accordingly;

(b) he failed to properly advise the patient and his relatives of the complexity and difficulty expected in a rectal resection in the patient’s case;

(c) he failed to properly perform the rectal operation on the patient on 18 September 2007 resulting in surgical complications and suboptimal surgical resection;

(d) he failed to arrange for or provide proper post-surgical care/treatment for the patient despite the surgical complications and suboptimal surgical resection;

(e) he failed to adequately or properly treat and/or care for the patient which resulted in or contributed to the patient’s suffering from post-surgical complications;

(f) during a consultation with the patient and his relatives on 17 September 2007 in relation to an impending rectal resection operation, he told them that he was a specialist without specifying his specialty, when he should have made clear that his specialty was in urology.”

4.  In relation to these particulars, it was alleged that each appellant was guilty of misconduct in a professional respect.

5.  On 21 November 2011, the Council found D1 guilty of the charge he faced and D2 guilty of particulars (b), (d) and (e) of the charge he faced.  D2 was found not guilty of particulars (a), (c) and (f).  On the same day, it ordered that D1’s name be removed from the General Register for a period of 12 months.  In relation to D2, the Council ordered that his name be removed from the General Register for a period of 8 months in respect of particular (b), 11 months in respect of particular (d) and 11 months in respect of particular (e), all periods of removal being ordered to run concurrently. Various ancillary orders were also made: in relation to both D1 and D2, requirements concerning their continuing education in medical ethics; and, further, in relation to D2, a recommendation that he be removed from the Specialist Register by the Education and Accreditation Committee.

6.  Both appellants appeal against the respective findings of misconduct and the penalties imposed.

7.  It will be seen from those aspects of the charges which were found proved against the two appellants that, save for particular (b) in relation to D2, the allegations and findings against both appellants concern their post-surgical care of the patient.  In essence, the Council found that both appellants had lied to the patient and his family as to the successful and complete removal of his tumour, and thereby failed to give appropriate follow-up care and advice to the patient and his family.  In relation to D2, although he was acquitted of particular (a) alleging that he failed to assess the extent and difficulty of the patient’s rectal resection, he was convicted of particular (b) in failing to properly advise the patient or his family as to that difficulty.  Although this particular concerned the pre-surgical stage, it was also concerned with the care and advice (or lack of it) given by D2 to the patient and his family.

8.  In order to understand the complaint in these appeals, it is necessary to set out the evidence relevant to the issue in some detail.

The factual background

9.  On 21 May 2007, the patient underwent surgery for prostate cancer at Queen Elizabeth Hospital (QEH).  Following a colonoscopy performed at QEH on 10 August 2007, the patient was discovered to have a rectal tumour.  He was duly informed of this finding on 27 August.

10.  Two days later, on 29 August 2007, D1 was consulted by the younger daughter of the patient (PW2).  D1 said the patient had also attended his clinic on that occasion, but PW2 disagreed.  This particular dispute is not of great moment.  PW2 explained that she had known D1 since the 1990’s and it was clear that she must have had considerable confidence in him because she had also introduced her friends to him as patients.  Both she and her sister (PW1) had decided to go to D1 because they had lost confidence in Government hospitals when, despite a battery of tests conducted by doctors at QEH, they had apparently failed to pick up the cancer in his prostate, and subsequently in his rectum.  It also emerged that the family were concerned that an operation at QEH would result in a permanent colostomy which they were anxious to avoid.

11.  Accordingly, D1 arranged for a PET-CT scan for the patient, which was carried out on 11 September 2007.  That scan confirmed the presence of a malignant tumour for which, at a consultation with the patient and his family that same evening, D1 recommended surgery.  It was at this stage that D1 also recommended that D2 should perform the operation.

12.  On 16 September 2007, the patient was accordingly admitted to St Teresa’s Hospital (STH) for surgery which had been scheduled to take place on 18 September.  There is a dispute as to what happened upon admission on 16 September.  D1 testified that he conducted a further physical examination and assessment of the patient, which included a rectal examination, and that he explained the surgical procedure to him.  The patient’s eldest daughter (PW1) was not able to be present at the admission, but his younger daughter (PW2) was.  She testified that at no stage on 16 September did she or her father see D1 at the hospital nor, consequently, did he examine the patient. This was a significant conflict of evidence (the first conflict), to which we shall return when we examine the grounds of appeal.

13.  Following the patient’s admission, he was allowed to return home.  The reason for this slightly odd circumstance was to enable the patient to attend a follow-up examination at QEH which had been previously arranged for the following day.  At this examination, which took place at about 1:30 pm on 17 September, the doctors at QEH informed the patient and his family that the tumour was malignant and that surgery for its removal had been arranged for 23 October 2007 at QEH.  The patient and his family then left the hospital and in due course returned to STH to prepare for surgery at STH the following day.

14.  In the evening of 17 September 2007, at about 9:00 pm, D1 introduced D2 for the first time to the patient and his family in the ward at STH.  In what is another significant conflict of evidence (the second conflict), D1 and D2 testified that D2 had conducted a physical examination and assessment of the patient, which again included a rectal examination, and explained the procedure for the operation.  Reliance was placed by both appellants on a contemporaneous hospital record and a nurses’ record for what had taken place on that occasion. However, PW1 and PW2, who were both present at this meeting, contended that no rectal examination had taken place: D2 merely palpated the patient’s abdomen, explained that he would do the surgery and that they should rest assured because the operation was very simple.

15.  The operation was duly performed by D2 on 18 September 2007, with D1 assisting.  During surgery, the patient’s ureter was inadvertently severed and, as a result, a stent was inserted.  Although a resection of the colon had been planned with a temporary stoma being put in place, difficulties arose which resulted in a full colostomy being performed.  In the result, an operation which was expected to have lasted four hours in fact lasted six.

16.  Following surgery, D1 and D2 each spoke to the family members in succession about the conduct of the operation.  According to PW1 and PW2, each appellant in turn told them that the operation to remove the tumour had been successful and that all of the tumour had been excised.  D1 and D2 explained the difficulties encountered during the operation and said that it had not been possible to create a temporary stoma: a full colostomy had therefore become necessary.  The case against D1 and D2 was that, on neither this occasion nor on any subsequent ward visit prior to the patient’s discharge on 6 October 2007, was anything said by either of them concerning the possibility that the tumour might not have been wholly excised and the need, therefore, to refer the patient for follow-up assessment and/or treatment by an oncologist.  Nor was anything said by D1 at any follow-up consultation about either of these matters.

17.  Both appellants on the other hand testified that neither of them had ever claimed to the patient or his family that the tumour had been completely excised.  When the Pathology Report on the tumour became available on 24 September, D1 testified that he discussed with the family the need for further consultation and follow-up with an oncologist, once the patient had been discharged and recovered from the operation (although this advice is not recorded on the STH Discharge Summary).  He advised them to keep an appointment with the QEH surgical team on 17 October and to furnish them with, amongst other things, the PET-CT scan and the Pathology Report. He expected that the QEH doctors would initiate an oncology follow-up after reviewing the relevant information.  D1 also advised (and this was recorded on the patient’s Discharge Summary) that the stent should be removed in six months’ time, although he accepted in questions from the Chairman of the Medical Council that he simply relied in this regard on what he was told by D2, who was a specialist in urology: he himself had no knowledge concerning the timing of removal of stents.

18.  As for D2, he testified that he did discuss the follow-up monitoring of the stent implant and the referral of the patient to an oncologist with D1 and he understood that D1 would in turn have discussed these matters with the patient and his family.  It was his view that the referral to an oncologist should not be done until the patient had recovered from the operation.  Following the patient’s discharge from STH, D2 did not see or have any contact with the patient again.

19.  On the patient’s discharge from hospital on 6 October 2007, a copy of the Pathology Report was given to the patient and his family members.

20.  On 12 October 2007, the patient attended D1 at his clinic, where the wound was cleaned, after which he and his family invited D1 out for dinner.  It was common ground that there was no mention on that day about referring the patient to an oncologist.

21.  There then followed three further consultations at D1’s clinic: on 16, 20 and 24 October 2007.  On each occasion, the patient was concerned about a persistent discharge from his rectum.  According to PW1 and PW2, they were simply told by D1 that everything was normal and there were no problems.  At the last consultation, D1 said that he would not need to see the patient again until mid-November.

22.  However, D1 testified that at the consultation on 16 October, he had discussed both the Pathology Report and the need for an opinion by an oncologist.  He produced his clinical records which specifically referred to these two matters.  Although there was no similar discussion recorded in his clinical notes for 20 October, his notes for 24 October have the following notation:

“F/U (follow-up) Nov(ember) ‘07 – To discuss referral to oncology when Mr Yim is less weak.”

A further note records D1’s advice to consult D2 in view of the continued discharge from the patient’s rectum.

23.  In addition, on the day before the last consultation with the patient and his family, namely 23 October 2007, D1 said he had faxed a four-page document to D2 containing the results of various blood tests which D1 had caused to be carried out following the consultation on 20 October.  In this faxed letter, which was dated 23 October, D1 had written to D2 as follows:

“Mr Yim is coping OK with the stoma. His appetite is good, but generally feels weak. Wound healing good – Let’s discuss what to do next.”

24.  Although no specific mention was made of an oncology referral in this statement, D1’s evidence was that by asking the question, he wanted to know if D2 thought the patient was ready to be followed-up by an oncologist.

25.  Thus, there was an important conflict between PW1 and PW2 on the one hand, and D1 and D2 on the other, as to what was said or not said about the necessity for the patient to be referred to an oncologist following the surgery, both at the hospital and subsequently in consultation (the third conflict).  This was inextricably bound up with the issue of whether or not D1 and D2 had told the patient that the tumour had been successfully and completely excised.

26.  The allegation against both appellants also engaged the question of the appropriateness of the advice as to the stent only being removed six months after implant.  However, it seems to us that this issue, which was not really disputed at least so far as the advice given was concerned, is subsidiary to the main issue concerning the advice, or lack of it, in relation to oncological referral and treatment.  It was not disputed that an X-ray of the stent was given to the family upon the patient’s discharge and that, although he had informed PW2 that the stent could remain in position for six months before being removed, D1 had telephoned PW2 on 19 December to remind her that the stent could be removed in January or February 2008.  Hence, the telephone call was made three months after the stent implant with the advice that it could be removed as early as the fourth month after the operation.  Hearing nothing further, a nurse from D1’s clinic again called on 18 February 2008 to arrange for the operation to remove the stent to be carried out at STH.  However, the family would not commit themselves to any arrangement.

27.  The reason they would not commit themselves was that, following the last consultation at D1’s clinic on 24 October 2007, and given their increasing concern about the persistent discharge from the patient’s rectum, the family had decided that he should see another doctor.  Accordingly, armed with the Pathology Report, they visited another doctor on the evening of 25 October 2007.  It was, according to PW1 and PW2, at this time that they first learned that the tumour had not been completely removed, as a result of which the patient was required to undergo a course of radiotherapy and chemotherapy.

28.  There was a difference of opinion as between the expert witness called by the Secretary to the Council and the expert witness called by the appellants as to how long the stent should have remained in the patient’s body before being removed: Dr Janet Lee Fung Yee, for the Secretary, suggesting in her report that the stent should have been removed between six and eight weeks after the repair of the ureter (although she accepted that a minority of urologists would countenance up to three months); Dr James Hwang, for the appellants, maintaining that it could remain for up to six months.  It was not disputed that when another team of doctors took over management of the patient after 24 October 2007, they cannot have removed the stent because it was still in position the following February.

The issues

29.  There was no explicit finding by the Council, on the basis of the expert evidence, as to the length of time the stent could or should have remained in the patient’s body before being removed.  Given that the patient and his family resolved to see other doctors as from 24 October 2007, notwithstanding D1’s attempts to follow up the question of removing the stent in December, we cannot see how a complaint of misconduct could be sustained on the basis of any lack of post-operative care in relation to the stent issue alone; unless the Council took the view that the advice to wait six months before removing the stent was itself unconscionable. But, on that issue, the Council made no finding.

30.  What, it seems to us, the allegation ultimately comes down to, therefore, is the failure of the appellants to care for their patient post-operatively by not referring him to an oncologist when they knew the tumour had not been successfully and completely excised: and instead, leading the patient and his family to believe that it had been.  D2 also faced the allegation that he had failed to properly advise the patient and his family about the complexity and difficulty involved in the operation prior to surgery.

31.  Put in those terms, they were clearly matters of credibility.  And it is on the resolution of the issue of credibility that this appeal is mounted.

The Council’s findings

32.  Faced with a number of obvious factual disputes between the parties, the Council made the following finding:

“20. Having considered all the evidence, we find the daughters PW1 and PW2 to be honest and reliable witnesses. Their evidence was consistent with each other. Despite rigorous cross-examination by the Defence, their evidence remained unshaken. Their accounts of the events were logical and reasonable, and were consistent with the subsequent development of events, including their resorting to other doctors to find out the incomplete removal of the tumour and to manage the residual tumour and the double-J stent. Their gesture of gratitude to D1 after the operation (by inviting him to dinner) was consistent with the reaction of a patient being told that the tumour had been removed completely and no further treatment would be required, and their subsequent feeling of betrayal was consistent with their discovery that the tumour removal was incomplete and the residual cancer required immediate chemotherapy and radiotherapy. PW2 also kept a running record of the relevant events in the form of a diary. We accept the evidence of PW1 and PW2.

21. Where the evidence of D1 and D2 was inconsistent with that of PW1 and PW2, we prefer the evidence of PW1 and PW2.”

33.  The Council went on to adopt some very strong language in its assessment of the conduct and evidence of the two appellants. The following excerpts from its findings give a flavour of that assessment:

“22. We find D1 to be dishonest and unreliable and that he tried to cover up the incomplete removal of the tumour, which explained the absence of post-operative follow-up arrangement to manage the residual tumour.

23. We also find D2 to be unreliable…..

24 …..

(g) D1 and D2 both lied to the patient and the daughters that the tumour had been completely removed. When PW2 asked D2 about the histopathology report, D2 should have told her that the report showed that the tumour removal was incomplete, instead of telling her to ask D1. D1 again lied to PW2 by saying that the report confirmed that the tumour was fully removed and there was no metastasis.

…..

26. ….. Contrary to his duty, D1 deliberately misled the patient and the daughters that there was no need to worry and no urgent follow-up treatment was necessary.

27. The conduct of D1 was grossly and seriously below the standard expected amongst registered medical practitioners.

…..

63. The most important feature in the present case is that it involves a potentially life threatening situation. The defendants’ conduct in hiding the fact that the tumour had not been completely removed misled the patient into a false sense of security. D1’s repeated assurance to the patient and the daughters not to worry during the post-surgical consultations were deliberately designed to dissuade the patient and the daughters from pursuing post surgical treatments which would expose his lie that the tumour had been completely removed.

…..

65. We are all of the view that D1 was the mastermind of the whole arrangement to induce the patient and the daughters into accepting his advice to have surgery performed by him rather than in the public hospital. He controlled the whole arrangement, and D2 was just recruited to perform the technical part of the operation. D1 was holding onto the patient and the patient did not even have access to D2 after the surgery.

69. In the present case, D1 pursued his self-interest to cover up his lie at the expense of the patient in not arranging oncology treatment. This exposure of the patient to the risk of a life-threatening situation is serious and cannot be tolerated.

…..

72. However, D1’s dishonest motive to hide the fact that the tumour removal was incomplete during all the post-surgical consultations in the private hospital and in his clinic is a weighty aggravating factor.” (Emphasis supplied)

34.  Whilst the Council evidently reserved its most damning criticism for D1, D2 was also said to have deliberately lied to the patient and his daughters.  The Council effectively found, and said so in emphatic terms, that D1 had for personal gain masterminded a plan to induce the patient and his family to have the operation done privately rather than in a public hospital, conspired with D2 to conceal from the patient and his family that removal of the tumour had not been successfully achieved, and then pursued a deliberate course of conduct designed to dissuade the patient and his family from having any treatment which might expose their lie; thereby clearly putting the patient’s life in grave danger.

The ground of appeal

35.  On behalf of both appellants, Mr Coleman SC has argued that in coming to the various findings of fact it did, the Council overlooked and/or failed to deal with certain documents which not only undermined the evidence of the complainants but confirmed the evidence of the appellants. Accordingly, the findings of the Council were vitiated. The particular findings of fact complained of are set out in detail in the Notice of Appeal but we do not consider it necessary to enumerate them, for the same complaint is made in relation to each of them.

Consideration

36.  We have been concerned whether some of these findings are in fact justified on the evidence.  For example, it is not quite fair to say (at para 65 of the Council’s judgment, see para 33 supra) that the patient did not have access to D2 after the surgery.  The nurses’ records at STH clearly show that between the date of the operation and the patient’s discharge, D2 visited the patient in the ward (sometimes twice a day) on 19, 20, 21, 22, 23, 24 September and on 6 October 2007.

37.  Furthermore, we have some difficulty accepting the findings that D1 masterminded a plan to lure the patient away from the public sector and hold onto him for his own financial advantage, given the evidence of PW2 that D1 advised the family that the patient should return to QEH for follow-up treatment after the operation, viz :

“On 19 September 2007, at around 10:30 am, I went to the clinic of (D1) to discuss with him again my father’s surgery performed the previous day. (D1) advised that my father should have a consultation at QEH after he was discharged from the hospital.

.....

My immediate reply was that I didn’t want my father to go back to QEH for follow-up.  I said I would rather have (D1) doing the follow-up. He said that at QEH the fees would be much lower.”

38.  Although the advice was given to PW2 in the context of D1’s belief at the time that the cancer may have spread to the patient’s liver (a belief which was subsequently found to be incorrect), nevertheless D1 was encouraging the patient’s family to continue to have treatment at QEH, which would be cheaper. 

39.  It would also seem rather strange that D1 should advise an oncological follow-up in relation to the patient’s liver by doctors at QEH, knowing that an unsuccessful operation to remove a cancerous tumour from the patient’s rectum had just been carried out by D2 and himself, if he was indeed hoping to hide that fact from the family.

40.  That leads to a more compelling and intriguing question in the light of the Council’s findings.  One wonders how D1 and D2 could ever have conceivably hoped to get away with covering up something that was recorded in the Pathology Report, a document which was in the hands of the patient and his family; the two daughters being described by the Chairman at one point during her questioning of D1 as “very educated people, from what we could see”.  If D1 did intend to cover up an unsuccessful operation to remove a tumour, not only was he dishonest, he was positively malevolent in trying to hide from his patient that his cancerous tumour had not in fact been removed.

41.  We put this last point to Mr Ismail for the respondent.  He was understandably at somewhat of a loss to explain how the appellants could have seriously hoped to conceal the matter from this particular family of the patient, if that really were their intention.  All he could suggest was that the appellants may have perhaps panicked following what they realised was an unsuccessful operation, an answer which did not recommend itself to us.

42.  In the normal course, this Court would be very slow to interfere with findings of fact and credibility by an experienced body such as the Council.  It found that it did not accept the evidence of D1 and D2 where it differed from the evidence of PW1 and PW2; furthermore, that D1 and D2’s conduct fell short of the standards expected of medical practitioners in Hong Kong.  This Court is at the double disadvantage of not having heard the witnesses but of also being ill-equipped to gainsay a determination by the Council as to what are or are not acceptable standards amongst medical practitioners. Our function in the present case must necessarily be limited, therefore, to examining whether the findings were properly supported by the evidence and to seeing if anything went wrong in the evaluation of that evidence, to such an extent that the verdict is thereby impugned.

43.  We have already referred in this case to certain documentary exhibits which were introduced into evidence: they are, in particular

(i) the records of STH on what are headed a ‘Prescription and Progress Sheet’ for 16 and 17 September 2007;

(ii) the nurses’ records of STH, in particular for 17 September 2007;

(iii) the fax of 23 September 2007 from D1 to D2;

(iv) D1’s clinical records for 16 and 24 September 2007.

44.  What is remarkable about these documents is that none of them was mentioned by the Council in an otherwise thorough and comprehensive judgment.  Yet, while some of the documents went to important issues of credibility, others went to the very foundation of the charges.  For example, the documents in (i) tended to support D1’s evidence that he had seen and examined the patient on 16 September, and that D2 had explained the procedure for the operation to the patient on 17 September 2007, which was contrary to the evidence of PW1 and PW2.  More pertinently perhaps, the document in (ii) completely contradicted the evidence of PW1 and PW2 that no rectal examination had been conducted by D2 on 17 September 2007. The documents in (iii) tended to support D1’s evidence that he was concerned to discuss with D2 the patient’s follow-up treatment, while the documents at (iv) showed that the follow-up treatment D1 had in mind, once the patient was fit enough following surgery, was an oncological assessment.  If the probability was that the documents at (iv) (and to a lesser extent (iii)) were true, it is difficult to see how the charge against D1 could be made out.  Such a probability would inevitably have inured to D2’s benefit, at least in relation to particulars (d) and (e) of the charge he faced.

45.  Mr Ismail has argued that once the Council rejected D1 (and D2) as witnesses, then it must also have rejected the genuineness and validity of the documents.  There are, with respect, two problems with that argument.  The first problem is that, since the Council never mentioned the documents, we do not know in fact how it evaluated them.  The Council might have accepted the veracity of the documents in (i) and (ii) and found that PW1 and PW2 were mistaken where their evidence was inconsistent with their contents.  Or it might have rejected the documents.  It might have accepted the truth of the documents in (iii) but concluded that the enquiry by D1 of D2 as to what to do next did not contemplate an oncological referral or follow-up.  Or it might have rejected both the documents in (iii) and (iv) as being fabricated.  However, there were problems with each of those resolutions.

46.  First, the Council preferred the evidence of PW1 and PW2 where it was inconsistent with the appellants’ evidence, but the documents in (i) and (ii) were consistent with the appellant’s evidence, not the evidence of PW1 and PW2.  Second, if the Council rejected these and the other documents because it did not believe the appellants, then it was to put the cart before the horse.  Thirdly, if it rejected the documents (as it might have done in relation to the documents in (iv) and, possibly, (iii)) as being fabricated, then it was incumbent on the Council to say so.  It is by no reasons clear to us that they were forgeries, and the Legal Officer was somewhat diffident about putting such an allegation to D1.  How the Council reasoned these matters, we do not know.

47.  But the second, and more formidable argument, is that the documents in (i) and (ii) (and arguably (iii)) cannot have been fabricated.  The documents in (i) and (ii) were hospital records kept by STH and hardly susceptible to interference by the appellants.  Moreover, they were agreed documents formally produced at the hearing by way of the Secretary’s Bundle.  Even if the documents in (i) were written by D1, the document in (ii) derived, on the face of it, from a completely independent source.  If the nurse responsible for the entry on 17 September 2007 was correct that a rectal examination was carried out at 9:00 pm by D2 in D1’s presence, then PW1 and PW2 were either seriously mistaken (even when challenged, as PW2 was at the hearing, on this particular document) or not telling the truth.  Yet the Council found PW1 and PW2 to be telling the truth where their evidence conflicted with that of the appellants.

48.  With respect, the evidence of PW1 and PW2 cannot be right if the nurse’s record is true and accurate; and no explanation was put either before the Council or before us as to why a nurse should have written that D1 performed a rectal examination on the date and at the time recorded, if he did not.  Equally, D1 and D2’s evidence is supported by an independent, official and agreed hospital record: yet their evidence on the matter was rejected. Furthermore, if one is considering the inherent probabilities and improbabilities of the evidence, one might think it rather unlikely that a prospective surgeon such as D2, who had never met the patient before but was about to undertake a lengthy and delicate surgery on him, would not conduct a preliminary examination of the very part on which he was about to operate.

49.  It may be that PW1 and PW2’s refusal to agree that a rectal examination was carried out by D2 on 17 September, when independent STH records suggest otherwise, was not fatal to their cause.  It could be, as we have suggested, that they were mistaken.  However, the matter had to be addressed, since their mistake might have impacted on other aspects of their evidence.  The problem with the Council’s findings is that on such an important matter which really cried out for some evaluation, there was none.

50.  The same may be said of the other documents in (iii) and (iv), even if the fact that they were written by D1 laid their provenance open to attack as contrived or fabricated documents.  Nevertheless, as we have said, these documents, particularly the documents in (iv), went to the heart of both charges and needed to be addressed, however vulnerable the documents were to such an attack and accusation.

51.  In Carrian Holdings Limited (In Liquidation) v Crestflame Estates Limited and others (unrep) CACV 205/1993, the Court of Appeal was invited to consider the effect of certain evidence on the trial judge’s acceptance of the credibility of one of the defendants, which was critical to the determination of the issue.  The Court expressed its approach to such an invitation as follows, at p 16-17:

“(1) An appellate court has jurisdiction to try the case and find the facts on the transcript. It is a rehearing.

(2) Nevertheless, not having seen and heard the witnesses, it is in a position of permanent disadvantage as against the trial judge.

(3) Therefore, this Court will reverse a trial judge on a finding of fact when that finding depended upon the credibility of a witness or witnesses, only if:

(a) It is shown that the judge failed to use, or culpably misused his special advantage, and

(b) The witness’s evidence is vitiated either by such a glaring improbability or by an objective fact or conclusive document which shows that the judge’s finding was wrong.” (Emphasis supplied)

52.  In Lobo v Kripalani [1998] 2 HKLRD 325, Godfrey JA, in considering the duties of an appellate court where the appeal before it was on fact, put the matter in this way, at 328:

“Unless an appellant can show that the judge had misunderstood the evidence, or failed to appreciate its effect, or has overlooked some documentary evidence, or other indisputable evidence, which should have compelled him to a different conclusion, this Court will not interfere with his findings of primary fact.” (Emphasis supplied)

53.  If we go back to the three important conflicts of evidence identified earlier, we can see that all of the documents in question were directly relevant to them: the documents in (i) going to the first conflict, the document in (ii) to the second conflict, and the documents in (iii) and (iv) to the third conflict.  Moreover, whilst all four groups of documents went to important issues of credibility, the documents in (iv) (and to some extent in (iii)) went to the heart of the charges.  Where they did not go to the heart of the charges, they each dealt with important issues of credibility affecting the resolution of those charges.  Yet the Council’s verdict is silent about them.

54.  In our judgment, the Council’s verdict cannot be upheld without the appellants and this Court knowing how these documents and the matters to which they gave rise were resolved.  It is certainly tempting to assume, as Mr Ismail encouraged us to assume, that some of them must have been rejected: however, we can see no justification on the evidence for making that assumption in respect of the documents in (i), (ii) and, possibly, (iii).  The fact that the Council expressed itself in emphatic and withering terms about the honesty and integrity of the two appellants does not deter us from our conclusion: if anything, it confirms it.  For, as the Court of Final Appeal in Solicitor (24/7) v Law Society of Hong Kong (2008) 11 HKCFAR 117 put the matter, per Bokhary PJ at 167:

“The more serious the act or omission alleged, the more inherently improbable must it be regarded. And the more inherently improbable it is regarded, the more compelling will be the evidence needed to prove it on a preponderance of probability.”

55.  If the Council took such a serious view of the appellants’ conduct and adopted such a disparaging view of their evidence, then it was particularly important that it should deal with that body of evidence which tended to confirm their credibility and strengthen the improbability of them having done what was alleged.

Conclusion

56.  We would allow the appeal by D1 in relation to the charge he faced and set aside the penalty and orders made against him.  We would also allow the appeal by D2 in relation to particulars (d) and (e) of the charge he faced. 

57.  So far as particular (b) in the charge against D2 is concerned, we agree with Mr Coleman SC that, having acquitted D2 of particular (a), namely, failing to assess the extent and difficulty of a rectal resection in the patient’s case and to make appropriate pre-operative precautions and/or preparations accordingly, his conviction under particular (b), for failing to properly advise the patient and his relatives of the complexity and difficulty expected in a rectal resection in the patient’s case, had to depend on the credibility of PW1 and PW2 as to what happened and what was said at the meeting between D1, D2 and the patient and his family in the ward on 17 September 2007.  Yet, that issue could not be satisfactorily resolved without the Council addressing the documents in (i) (so far as 17 September was concerned) and (ii).  As we have said, those documents on their face supported D1 and D2’s evidence on the issue and contradicted that of PW1 and PW2.

58.  Accordingly, we would also allow the appeal by D2 in relation to particular (b) of the charge he faced.  It follows that we would also set aside the penalty and orders made against him.

Re-hearing

59.  The question of what order we should make, were the appeal to be allowed, was canvassed with both counsel.  Mr Ismail asked that the matter be referred back to the Council for a re-hearing.  Mr Coleman SC resisted that application.

60.  These questions involve balancing a number of relevant considerations, each of which may have a different value.  In favour of a re-trial is the public interest that the highest standards of conduct be upheld in medical practitioners where public health is concerned and people’s lives are at risk.  This is a potent factor in our judgment in favour of ordering a new hearing before a different tribunal.  It might also be argued in this particular case that the reasons which have impelled us to allow the appeal do not engage the merits of the complaint so much as the way in which the evidence was treated.  It would always be open for the Council at a re-hearing to assess the impact of the documentary evidence on the issues before it, without imperilling the appellants’ right to a fair trial.

61.  On the other side of the balance is the regrettable circumstance that the facts giving rise to the complaint took place more than 6 years ago.  By the time the matter could be set down for re-hearing, more than 7 years would likely have passed.  That will inevitably impact on a case which to a large extent depends on the accuracy of recollections of what was said or not said at meetings and consultations many years ago.  There is the clear interest of the complainants to consider, but there is also the effect of a long drawn out set of proceedings on the lives and professional practices of the appellants.

62.  Whilst it would certainly be necessary for the Council at a new hearing to consider the documents which have led us to hold that this appeal should be allowed, the documents in (i) and (ii) do not easily stand with the present testimony of PW1 and PW2.  As we have said, either both witnesses were seriously mistaken or the records in question are false and/or inaccurate.  Yet they were produced as agreed documents, without the need for anyone from STH to be called to produce and speak to their provenance and integrity.  The appellants should not, in our view, be deprived of the advantage of relying on the documents qua agreed evidence in the event of a re-hearing; in which case, the fact that they do not easily stand with certain aspects of PW1 and PW2’s evidence is a problem that does not go away.

63.  We also have to say, with respect, that we are not entirely persuaded that some of the more trenchant remarks directed by the Council at the appellants’ professional integrity and honesty can be justified on the evidence (see para’s 36-41 supra).

64.  Accordingly, weighing these matters in the balance, and not without considerable hesitation, we have come to the conclusion that it would not be in the interests of justice to order a re-hearing of this matter.

Costs

65.  Having allowed the appeals of both appellants, we make a costs order nisi that the respondent pay the costs of the appellants, such costs to be taxed if not agreed.