LAM HUNG ON, FRANK v. THE MEDICAL COUNCIL OF HONG KONG

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JUDGMENT

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Sir Derek Cons, Ag. C.J:

1. On the 23rd September we allowed this appeal by Dr. Lam Hung On and set aside an order dated 7th May 1992 made by the Medical Council of Hong Kong following a disciplinary inquiry held on the same day under s. 21(1) of the Medical Registration Ordinance, Cap. 161 ("the Ordinance"). The Council had ordered the doctor's name to be removed from the register for a period of one year under s. 21(1)(ii). We now set out the reasons for our decision.

2. Dr. Lam is aged 56 and graduated in medicine from the Beijing Faculty of Medicine in 1960. Until 1976 he practised in one of the teaching hospitals in Beijing and then came to Hong Kong. In 1984 he became entitled to be known as a Licentiate of the Medical Council of Hong Kong on being granted a licence under s. 13A of the Ordinance, and upon being registered under s. 14 he became a registered medical practitioner.

3. After working for one year in the Government medical service, he began to run a private practice at a clinic in Hong Lok Road, Yuen Long. In about April 1989, under the auspices of the Estate Doctors Association he was allocated a clinic in the Yu On Estate, Shatin. He divided his time between the two clinics in this way: from 9 a.m. to 1 p.m. he attended the Shatin clinic and from 3.30 p.m. to 7.30 p.m. he saw patients at the Yuen Long clinic. A part time doctor was in charge of the Shatin clinic in the afternoons.

4. It is relevant (and convenient here to mention) that Dr. Lam married a lady named Sze Nan Yuk in 1972. She graduated from the Ho Pei Medical College in China but her qualifications are not recognised in Hong Kong. She came to live here with her husband in 1976.

5. On 10th December 1990, Dr. Lam was sent a notice of inquiry for which provision is made in regulation 14 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations ("the Regulations"). He was thereby notified that the charges into which inquiry was to be made were these:

"    That you, being a registered medical practitioner, on 13 March 1990 at 2/F., Block O, Kwan Tak House,  Hong Lok Road, Yuen Long did:

(i)    improperly delegate to a person, namely your wife, one Madam SZE Nun-yuk,     who is not a registered medical practitioner, duties or functions in connection with the medical treatment of a patient for whom you were responsible, contrary to section 14 of the Warning Notice of the Medical council of Hong Kong;

(ii)    fail to retain personal responsibility for the treatment of a patient for whom you were responsible, contrary to section 14 of the Warning Notice of the Medical Council of Hong Kong; and

(iii)    fail to exercise effective personal supervision over a person employed by you to perform functions relevant or supplementary to medicine, namely your nurse, Miss Tang Lai-kwan who led a patient for whom you were responsible to a consultation with the medical treatment of the patient, contrary to section 14 of the Warning Notice of the Medical Council of Hong Kong; and that in relation to the facts alleged you have been guilty of misconduct in a professional respect." (emphasis supplied)

6. We were not concerned with charge (iii) which had been dismissed by the Council. It seems, however, that it had been accepted by all concerned that the words emphasised applied to all three charges and not only charge (iii) as the layout of the typescript might appear to indicate. These words are, of course, important because in the circumstances, the inquiry could only have been whether or, not Dr. Lam had been guilty of "misconduct in any professional respect" under s. 21(l)(b) of the ordinance, and it must have been of such misconduct that he was found guilty in respect of charges (i) and (ii).

7. In response to letters from the solicitors acting for Dr. Lam the Secretary of the Medical Council, in a letter dated 23rd April 1992, gave the following further particulars of the relevant charges:

"(1) The acts or omissions of Dr. Lam which constitute the improper delegation of duties or functions in connection with the medical treatment of a patient for whom he was responsible are:-

1.    Permitting his wife to attend the clinic in his absence and act as if she were a registered medical practitioner.

2.    Permitting his wife to dress as a doctor.

3.    Permitting his wife to occupy his consultation room.

4.    Permitting his wife to examine patients.

5.     Permitting his wife to prescribe medicine.

6.     Permitting his wife to charge fees for her activities.

7.    Permitting a system to exist whereby a patient who attended t he clinic in his absence would be directed to attend a consultation with his wife who is not a registered medical practitioner.

(2)    Dr. Lam failed to retain personal responsibility for the treatment of a patient by:-

1.     Permitting his wife to examine his patients.

2.     Permitting his wife to diagnose his patient's illness.

3.     Permitting his wife to treat his patient.

4.     Failing to direct that all patients should be referred to him and not treated in the clinic in his absence.

5.    Having in his clinic a system whereby a patient who attended in his absence would be directed to attend a consultation with his wife who is not a registered medical practitioner."

8. It will be seen from the particulars that there is considerable overlap between the two charges and it is not easy to discern why it was thought necessary to, bring them both. But the substance of the conduct complained of was very clearly brought home to the doctor, namely that on the morning of 13th March'1990 he permitted his wife to act as a doctor in his clinic in his absence. That she did so was not disputed, having been readily admitted in a letter-sent on 13th October 1990 by the doctor's solicitors for submission to the Preliminary Investigation Committee. The crucial question was whether the doctor permitted his wife so to act, and thereby delegated his professional duties, as to which proof of his knowledge of her conduct, or likely conduct, was essential if he were to be found guilty. Such knowledge was not admitted in the letter and when he gave evidence to the Council the doctor said that he had in fact specifically told her that she was never to see patients when he was not in. It is clear that the Council were not favourably impressed by the doctor as a witness. Even so it was necessary for the Secretary to the Council, as "prosecutor" of the charges, to prove affirmatively his guilt.

9. The only witness called on behalf of the Secretary was a woman police constable who attended the clinic at about 10:30 that morning. She said that her name and address were recorded by a young girl sitting at the registration counter, and who, a few minutes later, showed her into the consulting room. There she found a woman, whom we know to be Dr. Lam's wife, sitting behind the desk, wearing a white coat and having with her a stethoscope; the doctor's wife examined her manually, then with the stethoscope, diagnosed that there was little wrong with her and prescribed medicine which the constable collected shortly afterwards from the receptionist outside, at the same time paying the charge asked of $60. The only matter challenged by the doctor's counsel at the inquiry was whether the doctor's wife was wearing a white coat (the doctor in his evidence saying that his wife had no such coat and that even he himself never wore one).

10. In support of the case against the doctor counsel for the Secretary submitted two documents to the Council. One was a cautioned statement made by the recorded in the notebook of the police arrested her immediately following the woman police constable testified. "Brief Facts" agreed to by the doctor's wife in open court when on 8^th May 1990, she Magistrate's Court at Tuen Mun to and constable who had incident to which The other was the doctor's wife in open pleaded guilty in the a charge of practising medicine without registration, contrary to s. 28(2)(a) of the Ordinance, being given then a conditional discharge and bound over in her own recognizance to be of good behaviour for two years.

11. In her cautioned statement the doctor's wife had said:

"Most of the time I acted as the assistant and helped (by) supervising nurses in getting medicine for the patients. It so happened today a patient was suffering from gastroenteritis. Having considered that there's no special drug for the patient, I daringly looked at (the patient) and gave (her) medicine. Whenever there's any special illness or drugs, usually Dr. LAM will see the patient himself and prepare the prescription. (Dr. LAM is my husband.)"

12. We need not set out the "Brief Facts", for they go no further than the evidence of the woman police constable, save to say that the doctor's wife admitted that she was not registered under the Ordinance and she handed over to the police when she was arrested a "treatment prescription record card" which she had apparently completed in respect of the supposed patient.

13. Counsel for the doctor objected strongly to the acceptance of both documents as evidence against his client. His objection was correctly overruled. In general the statements themselves carried very little evidential value. If the Legal Adviser to the Council had directed their attention to Reg. 28(3) of the Regulations, which gave them a discretion to exclude documents the maker of which was not presented for cross-examination, the Council might well have done so. But in any event we would have expected the Legal Adviser to have advised the Council that there was a passage in each of those documents which seriously implicated the doctor but which in law could in no way be taken as evidence against him and should therefore be carefully excluded from the Council's consideration when deciding what weight should be attributed to the contents of the documents. The passage in the "Brief Facts" is to be found in the opening words:

"    Information was received that a female practises medicine at LAM Hung-on Clinic in the morning daily ..."

The other is contained in the preamble to the cautioned statement, the constable recording that he had arrested the defendant's wife:

" ... as I had reason to believe that you treated patients and prescribed for their illness at the (clinic) ..."

14. Both passages are hearsay upon hearsay with no reference whatsoever to the source of what is being alleged. No tribunal of any kind should ever act on evidence of that nature.

15. The warning with regard to the second passage should have been particularly careful, for, although inadmissible as direct evidence, it was nevertheless, as counsel for the Secretary has stressed, admissible to show the context in which the words of the defendant's wife were spoken and would allow the Council, if they so thought fit, to imply from the initial words "most of the time I acted as assistant ..." an admission that at other times she had acted as a doctor, an implication that could be confirmed by the subsequent use of the word "usually". However that by itself, unsupported by other evidence, is in our view too fine a thread on which to hang guilt of charges of this nature.

16. Counsel for the Secretary relied heavily before this court, as she did before the Council, upon what was suggested to be evidence of a "system" operating in the clinic, stressing particularly the provision of a receptionist to usher patients into the consulting room, and the white coat and other trappings of doctorship, including the completion of a record card. Had the police stayed their hand for a while, and found the card in the normal files of the doctor, perhaps with others in his wife's rather than his own handwriting, that would have gone some way to implicate the doctor. But as things stood, the most' that could be said against him. vis-a-vis the suggested "system" was that he allowed his premises to be open in his absence.

17. Questioning by one of the members of the Council elicited from Dr. Lam the fact that he was running the Shatin clinic in breach of an Estate Association rule that required the operating doctor to be present personally for at least six hours each day. That was a highly prejudicial admission, made at the conclusion of a line of questioning which should have been stopped before it went that far. But once the admission had been made, it required at least a warning, not in fact given by the Legal Adviser, that it should be ignored. To be fair to the Council member in question we should say that he certainly was alive to the point, but thought that the admission was in some way relevant to credibility. But with respect to him, there was no dispute as to the facts on which the charges were based. The only issue was whether they justified a conclusion that the doctor knew of them.

18. The Legal Adviser, when asked_.by the Council to advise as to the necessary standard of proof, replied that it was:

"the civil standard that applies to these proceedings. That is the balance of probabilities, but that it is a sliding scale which is a flexible one so that the degree of probability is proportionate to the nature and gravity of the offence."

19. Such advice was, of course, correct, but it might have been helpful to, the Council had the Adviser dealt with the question more fully and quoted perhaps the passage approved by their Lordships of the Privy Council in Bhandari v. Advocates Committee [1956] 1 WLR 1442 at 1452:

"'We agree that in every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities.'"

20. Had the Council been so advised, and had they been adequately warned with regard to the other matters we have already mentioned, we have no doubt that they would have readily appreciated that, suspicious as the circumstances might have looked, there was insufficient admissible evidence to show, to the high standard necessary, that Dr. Lam was aware on that occasion of what his wife was doing in his absence in his clinic. It was for this reason that we allowed the appeal, finding it then unnecessary to deal with other complaints raised on behalf of Dr. Lam.

21. In handing down these reasons for our decision we make an order nisi that the doctor shall have his costs of the appeal.