CHOW CHOR KUEN , PETER v. THE MEDICAL COUNCIL OF HONG KONG

IN THE COURT OF APPEAL

1995, No. 176
(Civil)

Headnote

Appeal to Court of Appeal under Section 26(1) Medical Registration Ordinance against removal from register for three months - Criminal conviction for failure to keep proper register of dangerous drugs in accordance with provisions of Regulation 5(1) of the Dangerous Drugs Regulations.

Held (Court of Appeal): No grounds shown to justify interfering with the order of the Medical Council.

IN THE COURT OF APPEAL

1995, No. 176
(Civil)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

Introduction

1. The appellant is a registered medical practitioner. He appeals against an order made by the Medical Council on 11 July 1995 that his name be removed from the register for a period of three months and that such decision be published in the Gazette, the removal to take effect from the date of publication. The order was suspended to enable the appellant to exercise his right of appeal to this court under s26(1) of the Medical Registration Ordinance, Cap 161. It is the appellant's contention that, in all the circumstances of the case, the sanction imposed by the Medical Council is so "out of tune" with the evidence that this court should exercise its powers by imposing a lesser sentence.

The charge

2. The Medical Council's order arose from a charge brought by the Secretary to the Council against the appellant to this effect: that, on 1 June 1994 at the Shatin Magistracy he was convicted of an offence punishable with imprisonment, namely failing to keep a proper register of dangerous drugs otherwise than in accordance with the provisions of Regulation 5(1) of the Dangerous Drugs Regulations, Cap 134. The date of the offence which led to the appellant's conviction at the Shatin Magistracy was 23 August 1993.

3. There were 10 drugs involved, namely: Valium, Diazepam, Dormicum, Ativan, Librium, Rohypnol, Loramet, Halcion and Lexotan tablets.

4. Consequent upon his conviction, the appellant was fined $5,000 and ordered to pay $5,000 costs.

5. Section 21(1)(a) of the Medical Registration Ordinance empowers the Council to discipline registered medical practitioners who have been "convicted in Hong Kong or elsewhere of any offence punishable with imprisonment". Failing to keep a register in accordance with Reg 5(1) of the Dangerous Drugs Regulations is such an offence: punishable with imprisonment for three years and a $50,000 fine.

Background facts

6. By letter dated 7 May 1993 the Department of Health wrote to the appellant seeking particulars in relation to 10 drugs kept by him in his clinic at Shatin, relating to the period 20-26 July and 14-28 December 1992. The appellant was given until the end of the month to reply.

7. In his reply dated 28 May 1993 the appellant gave figures for the 10 items of drugs, extracted from his "present stock record", but said in the letter that he was unable to provide accurate data for two reasons:

(i) The appellant's chief dispenser and bookkeeper, Mr Tin Yiu Nam, responsible for record-keeping, had disappeared at the end of February 1993 with the records and the appellant was unable to locate him.

(ii) There had been a robbery at his clinic on 21 May 1993 in the course of which a lot of drugs was stolen. The appellant added: "I am still in the process of stock-taking the actual quantities of drugs that had been stolen".

8. On 23 August 1993 Department of Health officials visited the appellant's clinic at Shatin, amongst them Mr Chan Sze Cheong. Mr Chan had with him a copy of the appellant's letter of 28 May 1993. The Department of Health officials asked to see the appellant's register for dangerous drugs and the stock. The appellant produced ten books, each relating to one drug. These were subsequently exhibited at the Magistracy as exhibits P1-P10. The stock of dangerous drugs was checked and counted.

9. Exhibits P1-P10 were plainly deficient in terms of Reg 5 of the Dangerous Drugs Regulations. They did not have any opening or closing balances, nor the names of the suppliers of the drugs, nor the dates when the drugs were supplied, nor the addresses of the persons to whom the drugs were supplied.

10. Exhibits P1-P10 were the only books produced by the appellant for inspection. Accordingly, using the figures in the appellant's letter dated 28 May 1993 and assuming the figures in exhibits P1-P10 as to the drugs given to patients in the intervening period to be correct, Mr Chan arrived at a "theoretical balance". This was then checked against the physical stock found on the premises. There were many discrepancies. For example, for Valium, covered by exhibit P2, about 1,700 tablets were unaccounted for. For Ativan (1mg) nearly 2,000 tablets were unaccounted for.

11. On 31 August 1993 the appellant went to Mr Chan's office at the Department of Health and produced another register, relating to Lexotan. This became exhibit P11 at his trial. This was a reconstruction after the Department of Health officers' visit to his clinic on 23 August, from loose sheets which he said he had kept in his clinic. He also produced 268 Lexotan tablets and 703 Halcion tablets which he said had been missed during the stock check.

12. On 6 September 1993 the appellant was interviewed by Mr Chan at the Department of Health. In the course of that interview he said that the quantities listed in his letter of 28 May 1993 were "a rough stock-taking after the burglary". As he needed to give his reply to Department of Health in a short time, possibly mistakes had been made and "quantity may not be correct". As regards the 11 record books, exhibits P1-P11, these, he said, were made by him after receiving the letter from the Department of Health (dated 7 May 1993), from information extracted from his patients' record cards.

The trial

13. The hearing of the information, charging the appellant with breach of Reg 5(1) of the Dangerous Drugs Regulations, commenced on 3 May 1994. The appellant testified at his trial and, by way of explanation for the deficiencies in his records on 23 August 1993, elaborated upon the problems in connection with his clinic in the early part of 1993. First, there was Mr Tin disappearing with the register and other records at the end of February 1993. This led to difficulties with the appellant's Inland Revenue return for that year. Then the burglary occurred on 21 May 1993 resulting in loss of drugs. There were bottles broken and pills strewn on the floor of his clinic.

14. The appellant also produced in the course of his evidence a reconstructed stock book, compiled from information in exhibits P1-P10 and patients' record cards. This was exhibited as D7. The appellant never asserted that exhibit D7 had been in existence on 23 August 1993; it was not his case that, somehow, exhibit D7 had been overlooked when the Department of Health officers visited his clinic on 23 August and asked to see his records. And when he presented himself at the Department of Health on 31 August 1993 and produced exhibit P11 relating to Lexotan tablets, he never suggested that such a stock book was in existence. Nor did he make any reference to exhibit D7 when he was interviewed on 6 September 1993. The only inference to be drawn is that the reconstruction of the stock book took place some considerable time after the relevant date: 23 August 1993.

The disciplinary proceedings

15. The inquiry of the Medical Council was held on 4 May 1995. In essence, the Secretary's case depended upon the record of the case in the magistracy. Although Mr Chan was called as a witness, his testimony was of little consequence.

16. The real issue for the Medical Council was simply this: having regard to the nature and gravity of the offence proved, what was the proper order to make under s21(1) of the Medical Registration Ordinance?

17. The appellant was represented by counsel at the hearing. A document headed "Mitigation on behalf of Dr Chow" of 20 pages was put before the Council. Mr K.Y. Thong, counsel for the appellant, explained that exhibits P1-P10, produced to the Department of Health officers on 23 August 1993 by way of records, were attempts at reconstruction of records, first undertaken some time after Mr Tin's disappearance. The task was complicated by the burglary on 21 May 1993.

18. Exhibit D7, the stock book, was never put in evidence at the hearing before the Council. This point needs emphasis because, at the hearing of the appeal, much was made of exhibit D7 by Mr Michael Thomas QC; he said that exhibit D7, together with the particulars in exhibits P1-P11, and coupled with the suppliers' invoices, furnished in essence all the particulars sufficient to satisfy the requirements of Reg 5(1) of the Dangerous Drugs Regulations.

19. We are not satisfied that such a point can properly be made. The only reference to a "stock book" in the hearing before the Council was a statement by Mr Thong to this effect: although the appellant did not keep a register which complied with the regulations, the combination of a number of documents including "the patient record cards, the invoices and the stock book found in his clinic, albeit separate", together contained the necessary particulars.

20. Mr Thong never elaborated upon what he meant by the "stock book found in his clinic". It certainly was not found on 23 August 1993, nor was it produced on the two subsequent visits made by the appellant to the Department of Health.

21. Whilst no specific reference was made to exhibit D7, nor was it produced at the disciplinary hearing, another document was given great prominence at the hearing before the Council: exhibit D4, which was a reconstructed register in the form set out in the schedule to the Dangerous Drugs Regulations. The point made was that this was the kind of register which Mr Tin maintained before his disappearance, and which the appellant would have eventually achieved, working through exhibits P1-P10, his attempts at reconstruction, if the visit had not occurred on 23 August 1993.

22. Exhibits P1-P10, as mentioned earlier, were deficient in many regards. Exhibit D4 in form satisfied the requirements of the regulations. It seems odd that when the appellant embarked upon his task of setting up new registers, he did not immediately do so in a form which satisfied the requirements of law.

Family and professional background

23. Much material was put before the Medical Council concerning the appellant's family and professional background. Testimonials were produced from a wide range of persons praising the appellant for his professional and community services. Nothing suggests that these matters were not fully taken into account by the Medical Council.

The Council's reasons for its decision

24. In making the order of removal from the register for 3 months, the Chairman on behalf of the Council said this:

"The Council is becoming increasingly concerned that some doctors continue to disregard their obligation to keep proper registers of dangerous drugs. Not only is it a criminal offence but such failures also bring the profession into disrepute. This Council takes a most serious view of any doctor who fails to keep proper records. Dr Chow was charged with and convicted of failing to keep proper records relating to nine dangerous drugs. The Summons refers to just one day, August 23rd , 1993. The evidence given in the magistrate's court, however, relates to a period of time. The Exhibits P1 to P11 go back as far as 1992. The nature of these records and whether or not they were reconstructions is not something which the Council really needs to be concerned with. Our concern centres on the records kept by Dr Chow after his employee, Mr Tin, failed to report for duty at the clinic on March 1st, 1993 and it was clear that he had taken all the records and registers relating to dangerous drugs with him.

Prudent action was not taken at that stage to establish stock levels. Even after the burglary at the clinic on May 21st, 1993 proper stock-taking was not carried out. The investigation of the burglary was no doubt hampered by the lack of accurate records because Dr Chow could not say with any certainty what drugs and what quantities had been stolen. That is a matter which the Council finds disturbing.

The records as produced to the Department of Health inspector, Mr Chan, when he visited the premises on August 23rd, 1993 showed, in addition to not disclosing a balance figure, a number of other serious deficiencies in the record-keeping system. Even if we were to accept that Dr Chow's record-keeping was impeccable up to March 1st, 1993, the position between March and August 1993, a period of five months, is that Dr Chow got nowhere near keeping the kind of records required by the Dangerous Drugs Ordinance and its Regulations. Dr Chow's practice, we were told, has some 40,000 patient cards and there were at the time of the rough stock-taking in May 1993 over 45,000 tablets containing dangerous drugs. The scale of Dr Chow's dangerous drugs holding and dispensing clearly aggravates his failure to keep proper records."

Grounds of appeal

25. Counsel for the appellant accepts the principle that, generally speaking, this court will only interfere with a disciplinary order of the Medical Council where it can be shown to be plainly wrong.

26. Counsel's submission, in essence, is that the Council adopted the wrong approach: it failed to appreciate that the Council's powers were grounded simply on s21(1)(a) of the Ordinance - the fact that the appellant had been convicted of an offence in the Shatin Magistracy on 1 June 1994 - and not on s21(1)(b): that the appellant has been guilty of misconduct in any professional respect. The upshot, as counsel argues, was that past matters such as the form and substance of the records kept at the clinic came under scrutiny, which were strictly outside the ambit of the disciplinary charge.

27. We cannot accept this submission. Under s21(3) of the Ordinance the Council is entitled to consider the record of the case in the magistracy and other evidence showing the nature and gravity of the offence.

28. It was the appellant himself who adduced evidence concerning his efforts at reconstruction of his records, as his explanation for the deficiencies in exhibits P1-P10 on 23 August 1993: the only records he then produced.

29. On any view of the matter, the appellant's explanations were not impressive. Since, as he maintains, impeccable records were kept when Mr Tin was in his employment - in the form, he says, as seen in exhibit D4 - it is difficult to understand why a fresh register, complying with the requirements of the regulations, could not have been started, when it became clear that Mr Tin was not going to return with the documents.

Conclusion

30. One must feel considerable sympathy for the appellant. His troubles started at the end of February 1993. If this appeal is dismissed, he must immediately suspend his practice for three months, with grave and perhaps unforeseeable consequences: including the permanent loss of many of his patients and the possibility of having his tenancy at Shatin terminated. On the other hand, the Council has onerous responsibilities to the medical profession as a whole and to the public. It is perfectly entitled to take the view that medical practitioners must as a general rule strictly observe the requirements of the Dangerous Drugs Regulations.

31. In this case, the appellant's breach of the regulations was not merely a technical matter. Not only was it impossible to ascertain, from his attempted reconstruction, what the balance of his stock of drugs was at any particular time, there were also considerable discrepancies between his records (such as they were) and the physical stock at hand. The possibility for abuse cannot, in these circumstances, be ignored. The circumstances of this case are different from Dr Mao Chung Ting v. Medical Council C.A. 182/95 (15 December 1995, unreported) where this Court allowed an appeal to the extent of ordering the removal from the register to be suspended for two years.

32. For these reasons, we would dismiss this appeal, with an order nisi that the appellant pays the respondent's costs.