DR TO CHUN FUNG ALBERT v. THE MEDICAL COUNCIL OF HONG KONG

CACV 23/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 23 OF 2011

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BETWEEN

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REASONS FOR DECISION

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1.  This was an application by the appellant to stay the disciplinary decision and order of the Medical Council dated 8 January 2011 finding him guilty of professional misconduct in relation to four matters and removing him from the general register for a period of 15 months. At the conclusion of the hearing the application was dismissed with costs. I give my reasons below.

The background

2.  The events giving rise to the disciplinary proceedings took place as long ago as 2005.  Suffice it to say that before the disciplinary hearing could commence on 29 July 2010, there had been a raft of applications/proceedings including judicial review proceedings which had the effect of delaying the hearing.

3.  The detailed background can be found in the Council’s decision to which reference should be made.  In outline, the complainant sought mesotherapy treatment from MBH Beauty Institute on 8 July 2005 to deal with what the Council described as “her problem of abdominal and gluteal adiposity (i.e. fat pads)”.  The treatment took the form of injections by a doctor.  The complainant was not told the name of the doctor who administered the injections.  However, she developed serious swelling and pain of the abdomen as a result.  She went back to MBH and saw the same doctor the following day who told her they were normal reactions and prescribed analgesics which were dispensed but without the prescribed information other than the patient’s name.  The pain persisted and the complainant went to the A&E Department of the Prince of Wales Hospital on 10 July when she was diagnosed with allergic reaction or abdominal wall infection and given antibiotics.

4.  She went back to MBH for a follow-up by the same doctor on 12 July who told her to stop the hospital medication as there was no infection and that the swelling would subside.  The complainant then sought a second opinion on 15 July who diagnosed inflammation and fat necrosis.

5.  Between 18 and 26 July 2005, the complainant sought information from MBH as to the treating doctor’s identity and demanded a report from the doctor as to the contents of the injections.  Once that information was to hand, the complainant made her complaint to the Council.

6.  Four charges were laid against the appellant, namely, (a) failing to ensure that medicine bags containing medications dispensed were properly labelled; (b) failing or refusing to provide copies of medical notes/records upon the request of the complainant during the period between 15 February and 11 April 2006; (c) “on or about 8 July 2005, the [appellant] used phosphatidylcholine [(“PPC”)] for mesotherapy injections on the complainant, which was not a registered drug or allowed to be used in Hong Kong”; and (d) associating with a beauty institute (MBH) to provide medical treatment to the complainant in July 2005.  

7.  The single most important issue below was whether the appellant was the treating doctor.  The evidence and relevant considerations appear in §§13-30 of the decision.  The Council found that the appellant was the treating doctor.  Relevant to that finding was the appellant’s relationship with MBH.

8.  The Council found that the various organisations under the MBH Group were entirely controlled by the appellant’s family; that the premises and telephone number of MBH was used by the appellant both for his medical practice and the services of the Australian College of Cosmetic Surgery Hong Kong Chapter (“ACCS-HK”); and that the operations of the MBH Group and the appellant’s clinic and ACCS-HK were so intricately connected that their separate corporate identities were more apparent than real.  The Council drew the inference that the MBH staff and nurses were telling the truth as to the authorship of the medical report and the identity of the treating doctor.

9.  In respect of charge (c), which was the most serious of the charges, the Council ordered the removal of the appellant’s name from the general register for 15 months.

The correct approach

10.  The general principles for a stay of execution under the Rules of the High Court are well-settled.  The question is their application given the self-contained statutory scheme to be found in the Medical Registration Ordinance, Cap. 161 (“the Ordinance”).  The relevant provisions of the Ordinance are the following:

“21. Disciplinary powers of Council

(1) if, after due enquiry into any case referred to it by the Preliminary Investigation Committee … the Council is satisfied that any registered medical practitioner ─

…

(b) has been guilty of misconduct in any professional respect;

…

the Council may, in its discretion ─

…

(ii) order the name of the registered medical practitioner to be removed from the General Register for such period as it may think fit; or

…

(iva) make any such order as aforesaid …and further order that such order take effect upon its publication in the Gazette if the Council is satisfied that it is necessary to do so for the protection of the public or in the best interest of the registered medical practitioner;

…

25. Orders of the Council

…

(2) unless an order under section 21 (1) (iva) is made at the same time as another order is made under section 21 (1) … the Registrar shall not remove the name of the registered medical practitioner from the General Register …before the expiry of 1 months after the date of service of the order of the Council on the person concerned or, in the case of an appeal made to the Court of Appeal against the order under section 26, before the appeal is finally determined.”

11.  The statutory regime provides for an automatic stay once an appeal is lodged unless at the time the removal order is made, an order is also made under section 21(1)(iva) which can only be made if the Council is satisfied of the necessity to do so on one of two grounds: for the protection of the public or in the best interest of the doctor.  In the present case, it is the first ground that is relevant.

12.  The statutory scheme in this regard is similar to that of the United Kingdom: see sections 35D and 38 of the Medical Act 1983.  Historically, prior to 1969, a doctor in the United Kingdom found guilty of infamous conduct could continue to practice pending appeal.  The Medical Act 1969 empowered the Council to order his immediate suspension from practice.  At the same time, it conferred on the court the power to terminate the immediate suspension of the doctor concerned pending the determination of his appeal.

13.  There have been a number of English decisions on the proper way to approach applications to terminate immediate suspensions.  A convenient and useful summary may be found in the judgment of Garland J giving the judgment of the Divisional Court in Harding-Price v General Medical Council (2001) 61 BMLR 136:

“ [22] The correct approach by this court to such an appeal was first considered as long ago as 1974 in the case of Prasad (Sharangdhar) v General Medical Council. We have a transcript dated 9 September 1974, although it is also reported at (1974) 118 Sol Jo 756.

[23] It was concerned with the corresponding provision in the 1969 Act which was in the same terms. Swanwick J, giving the lead judgment, stated:

‘The question we have to decide is whether there were facts, circumstances, considerations and evidence before the committee on which they were justified in making the determination they did or whether it can be said that in doing so, they were manifestly wrong.’

[24] I think that is the proper way to approach the matter. That principle had been followed over the years in a number of cases and most recently by Judge LJ in the case Dr Ala v General Medical Council (19 July 2000, unreported) Judge LJ said this (para 9-10):

‘… Sitting as we are in the Divisional Court, we cannot set aside an order for immediate suspension unless there is material to satisfy us that the decision reached by the Professional Conduct Committee was, to use one phrase, wholly wrong or, using language more current, unreasonable in the … Wednesbury sense -- a decision which a Professional Conduct Committee really could not have reached if it was applying its mind to the issues in a fair, balanced and reasonable way.

These decisions are peculiarly decisions for the Professional Conduct Committee itself, with the responsibility for governing the Medical Profession and for dealing with those doctors who, for whatever reason, have fallen short of the standards which are required of them.’ ”

The Divisional Court adopted and followed the approach of Judge LJ in the Dr Ala case.

14.  Given the similarity of the Hong Kong and UK legislation, prima facie, I can see no reason why the English approach should not be adopted.  The threshold is high: it has to be shown that the decision reached by the Council was “manifestly wrong” or “unreasonable” in the Wednesbury sense.

15.  Mr Li who appeared for the appellant submitted that the position in Hong Kong is different because of section 26(3) of the Ordinance which reads:

“26. Appeals against orders of the Council

…

(3) The practice in relation to any such appeal shall be subject to any rules of Court made under the High Court Ordinance (cap. 4) …”

It was submitted that, accordingly, it would be wrong to adopt the English approach.

16.  Mr Li submitted that the conventional test of showing an arguable appeal should apply.  He referred to approach in A Solicitor v The Law Society of Hong Kong, CACV 107 of 2005, unreported, 15 April 2005.  That was the case arising out of solicitors’ disciplinary proceedings in which the solicitor concerned was suspended from practice at 21 months pending the determination of his appeal.  The solicitor successfully applied for a stay.  That case is distinguishable: in the first place, the statutory framework is different, there being no equivalent to section 21(1)(iva) and 25 (2) of the Ordinance.  Secondly, as Acting Chief Judge Tang noted (at §27), that case did not involve dishonesty or incompetence of the solicitor in his practice: it was not a case “where protection of the public requires immediate suspension”.  Third, in that case, the Acting Chief Judge considered it unfortunate that the solicitor could not apply to the tribunal for a stay, opining that “their views on a stay would have been highly valuable”: see §29.

17.  That aside, what Mr Li appears to have overlooked is that while there is no parallel provision in the Ordinance empowering the court to terminate the immediate suspension, if the stay were granted, in substance, the result would be no different from the termination of the immediate suspension order.  That being the case, it is difficult to see why the reasoning in the English cases for adopting the high threshold is not applicable.

18.  In exercising its undoubted discretion to order a stay, the court must have regard to the statutory framework of the Ordinance.  In the ordinary civil case, there is no automatic stay of the judgment.  A party wishing to appeal has to make an application for a stay and one of the usual grounds is that the appeal would be rendered nugatory if a stay were not granted.  In medical disciplinary cases, the situation is completely different.  The stay is automatic once an appeal is lodged, provided the order for suspension is made at the same time as another order under section 21(1).  In making a suspension order, the Council has to be satisfied of the necessity to do so.  Such an order is not lightly made.  The legislation requires the Council to apply is mind and specifically address the issue whether “it is necessary to do so for the protection of the public”.

19.  So, unlike the ordinary cases where there is no automatic stay, the body charged with the responsibility for governing the medical profession already has given specific consideration to that matter and concluded that the public interest requires immediate removal from the general register.  On any view, the Council’s views are ‘highly valuable’, if not also determinative.  The court not being equipped to make judgments of that nature should be slow to differ from the Council unless it can be shown that the decision for immediate removal was plainly wrong or Wednesbury unreasonable.

The grounds of appeal

20.  The appellant has advanced no fewer than 19 grounds on conviction and one on sentence. At trial, the crucial issue was the identity issue, whether the appellant was the treating doctor.  With encouragement from the court, Mr Li confined his submissions to his 3 “best points” which correspond to grounds 18, 7, 9 and 11 (the latter two treated as a single point).

Charge (c)

21.  The nub of the submission was that the Council’s finding was not based on facts and hence its conclusion on charge (c) was manifestly wrong.  The charge itself appears in §6 above.  As I understand it, the invasive procedure is not denied.  It is accepted that the complainant was injected with PPC on 8 July 2005.  What is now being said is that there was never any suggestion at trial by the complainant or the expert that the complainant was suffering from any disease at the time she received treatment at MBH.

22.  Mr Li took issue with the Council’s statement in §4 of its decision concerning the complainant’s “problem of abdominal and gluteal adiposity (i.e. fat pads)”.  He submitted that that had never been her complaint and the Council had introduced it of its own accord, elevating it to a ‘disease’ so as to justify §49 of its decision which reads:

“49. Abdominal and gluteal adiposity is classified as a disorder by the World Health Organisation (i.e. WHO) in the International Classification of Diseases. Substance used in the treatment of the disease falls within the statutory definition of pharmaceutical products and medicines in the Pharmacy and Poisons Ordinance.”

It was said that it was not the complainant’s evidence that she was suffering from any disease. As there was no disease to be treated, the substance used could not have been a drug and hence the finding was manifestly wrong.

23.  According to the Shorter Oxford Dictionary, “adiposity” means “fatness, obesity”.  Abdominal and gluteal are descriptive of and identify the parts of the human anatomy affected.  I reject the suggestion that the Council was introducing some new complaint that had not been made by the complainant.  In fact, in her complaint to the Council of 15 October 2005 which triggered the disciplinary proceedings, the complainant referred to her “hips and lower abdomen” being “fat” which, in the vernacular of the medical profession, would correspond to abdominal and gluteal adiposity.  It was for that reason that she sought treatment.

24.  Mr Li further submitted that to be a drug, the substance (i.e. PPC) must be used for the treatment of a disease.  It was said that adiposity is not and cannot be a disease.  However, the World Health Organisation’s Manual on Statistical Classification of Diseases, Injuries and Causes of Death contains the following entries:

“ Obesity and other hyperalimentation (E65-E68)

E65 Localised adiposity

E66 Obesity

…”

That appears to support the view that obesity is a disorder. That is a matter that one would have thought is more within the province and expertise of medical professionals than the court. I would not second-guess the views of the Council on that issue.

25.  For those reasons, I am far from persuaded that the appellant has shown that he has an arguable, much less a strong, case that there was no factual basis for the Council’s finding on charge (c).

Unfairness in the conduct of the trial

26.  The appellant’s complaint is that the Council imposed a time constraint which cut short his counsel’s cross-examination of the complainant, causing a grave miscarriage of justice.  When the sixth day of the hearing commenced at 9:30 am, the transcript shows that the chairman made it plain to both sides that the Council intended to finish with that witness (being the complainant) that day, “whatever it takes”.  The Council considered that, otherwise, it would be unfair to the complainant who had been waiting around for too long.

27.  It is common ground that cross-examination began at 11 am on 31 October 2010 after completion of the complainant’s examination-in-chief which had taken about 5 hours in total.  Mr Li’s complaint was that the appellant needed two days for cross-examination but was only given the afternoon plus part of the morning.  In fact, the complainant was cross-examined for at least 7-7.5 hours (after allowing for the lunch adjournment and short breaks) as the Council did not rise until 8 pm.

28.  The efficient use of time and resources must be carefully managed by any tribunal in charge of proceedings.  A party is not entitled to take as long as he likes over any particular part of the proceedings.  If the tribunal considers from the way the case has been conducted that time limits would be appropriate, the party on whom such time constraints are imposed cannot complain unless the constraints are so unreasonable as to be unfair.  Here it was said that two days were needed.  The time the appellant actually had for cross-examination would have corresponded to almost two normal court hearing days.  As notice was given before the cross-examination began, it would not have been a difficult task for competent counsel to prioritize and make efficient use of the time accorded.  This point does not strike me as an arguable ground of appeal.

Objective evidence

29.  There are two aspects to this ground.  The first complaint relates to the use made of a medical report that the staff of MBH had supplied to the complainant.  The appellant’s stance was that if the signature appearing on the report was not his signature, it could and should not be used as evidence against.

30.  §19 of the decision reads:

“19. The medical report bore the letterhead of the [appellant]. The [appellant’s] name was also type-written below the signature. The highly technical nature of the contents of the report was consistent with a report written by a doctor. The contents correlated with the events and conversations which took place during the mesotherapy treatment and follow-up consultation. These matters were privy to the treating doctor who had administered injections and seen [the complainant] in the follow-up consultation. The only reasonable inference is that the report was written by the [appellant] in the capacity of the treating doctor.”

31.  In §20 (about which complaint is made), the Council proferred reasons why the acceptance that the signature was not that of the appellant did not affect the finding made in §19.  The complaint is that those reasons were not matters that had been put to the appellant or canvassed at trial.  But the reasons proffered do not appear to matter for the critical issue is whether the Council was correct in drawing the inference that it did from the matters set out in §19.  §20 does not impinge on that issue.

32.  The other aspect appears to relate to a factual finding concerning a telephone conversation between the complainant’s solicitors and the appellant on 14 March 2006.  That call was made to follow up on two earlier written requests for the complainant’s medical records which went unanswered.  It is recorded in the complainant’s solicitors’ letter dated 15 March 2006 that the appellant had asked for the statutory period of 40 days to comply with the request.  No issue as to that was taken until July 2006, after the appellant’s former solicitors had been instructed.  Nor did the appellant respond to the written requests stating that he was not the treating doctor.

33.  The point sought to be made is not entirely clear.  In any event, a stay application is hardly appropriate for challenging factual findings.  Assuming (for present purposes) there was substance in this ground, of itself, it would hardly render the identity issue manifestly wrong given all the other evidence before the Council.  In short, the two aspects, collectively or independently, do not have the makings of an arguable ground of appeal.

The immediate suspension order

34.  In the present case, having found the appellant guilty of all four charges, the Council went on to consider the implications of the appellant’s misconduct in §§62 to 68 and 70 of the decision.  It noted that the appellant had some years previously given improper treatment to a patient and in the present case had administered unregistered drugs which had the potential of inflicting serious harm.  The appellant was found to have contested the charges on the fraudulent basis that he was not the treating doctor.  The Council also noted that serious potential danger in emergencies of improperly labelling dispensed medicines and stated its belief that the appellant would continue to practice in the fraudulent manner.  In ordering that the removal order take immediate effect, the Council stated:

“70. We are particularly concerned that the [appellant] has been trying to delay the inquiry thus giving him the opportunity to practice in the same manner. We are satisfied that it is necessary to implement the removal orders as soon as possible, as it is necessary for the protection of the public.”

35.  The Council is charged with the responsibility for governing the medical profession and dealing with doctors who have fallen short of the standards required of them.  I share the sentiments of Judge LJ that “these decisions are peculiarly decisions for the [Council] itself.”  Unless it be said that the Council was wholly wrong in reaching a conclusion a reasonable tribunal could not possibly have reached, the stay application must fail.  Given the view I have taken of the appellant’s three best points, the appellant has failed to make out a case to warrant a stay.