YEUNG KWOK KEUNG DENNIS v. CHIROPRACTORS COUNCIL OF HONG KONG

CACV 104/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 104 OF 2014

(ON APPEAL FROM THE INQUIRY COMMITTEE OF
THE CHIROPRACTORS COUNCIL)

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JUDGMENT

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Hon Kwan JA:

The charges

1.  On 12 February 2014, the Inquiry Committee of the Chiropractors Council found the appellant Dr Yeung Kwok Keung Dennis, a registered chiropractor, guilty of the following disciplinary offences in that in about August 2010 he had disregarded his professional responsibility towards a patient (“the complainant”) when the latter was under his care:

(a)  he provided inappropriate chiropractic treatment to the complainant on 30 August 2010 (“the treatment”) after which the complainant felt numbness and weakness in his lower limbs[1];

(b)  he had failed to give the complainant proper explanation of his neck conditions and/or inappropriate advice on the effect and associated risks of the recommended treatment before providing the treatment to him;

(c)  he failed to take appropriate or necessary follow-up action in the best interest of the complainant immediately after the treatment on 30 August 2010 when the complainant indicated severe numbness in his lower limbs to the appellant;

and in relation to the facts alleged, either individually or cumulatively, he has been guilty of misconduct in a professional respect.

2.  The Committee ordered the appellant’s name be removed from the register for four months and that the removal order be suspended for 18 months subject to his compliance with the following conditions: (1) he shall not commit any further disciplinary offence within the suspension period; (2) he shall satisfactorily complete continuing professional development (“CPD”) courses on neurology, to the equivalent of 12 CPD points within six months from the date of the service of the order on him, such courses to be approved by the Council in advance; and (3) he shall provide documentary evidence of satisfactory completion of the CPD courses approved by the Council within one month after expiry of the six-month period for completing those courses.

3.  The appellant lodged this appeal against his conviction pursuant to section 22 of the Chiropractors Registration Ordinance, Cap 428 (“CRO”).

This appeal

4.  Mr Johnny Mok, SC who appeared for the appellant on this appeal[2] but not at the disciplinary hearing, made the primary contention that the Committee erred in finding the appellant guilty of charge (a) on the basis he failed to perform a neurological examination because the lack of such an examination was never part of the charge, properly construed.  He complained that the appellant had not been given a fair hearing as he was not made aware of the charges or allegations or suggestions which he had to meet, in breach of the essential requirements of natural justice.  The appellant’s trial counsel was not preparing or presenting a case against any lack of neurological examination in charge (a).  Rather, his evidence was designed to counter the suggestion that inappropriate chiropractic treatment was given to the complainant.

5.  If, contrary to his submission, charge (a) had been intended to target the absence of a neurological examination, the charge as framed could not be said to constitute an “adequate statement of the substance of the complaint” within the meaning of section 17(2) of the CRO[3] or section 17 of the Chiropractors (Registration and Disciplinary Procedure) Rules (“CR”)[4].  Charge (a) did not contain sufficient particulars for the appellant to identify the allegation of the lack of a neurological examination, and the Committee erroneously overruled the appellant’s application at the outset of the hearing for further and better particulars of all the charges against him.

6.  Mr Mok further submitted there was a fundamental shift in the prosecution’s case in that the issue of neurological examination only emerged during the cross-examination of the appellant.  That was far too late as the appellant had been deprived of a fair opportunity to prepare to meet this point properly.  Besides, no attempt was made by the Legal Officer to amend charge (a) pursuant to section 33(1) of the CR[5] and the prosecution was strictly bound by the charge as it stood.

7.  Lastly, Mr Mok contended that once charge (a) falls away, charges (b) and (c) should fall away at the same time as charge (b) referred to the “treatment” in charge (a) and if there was no “inappropriate” treatment, “follow-up” action in charge (c) would not be necessary.

The background and findings

8.  The relevant background facts may first be stated as follows.

9.  The complainant was 33 years old in 2010 and working as a primary school teacher.  He first consulted the appellant on 4 July 2008.  At the time, he complained of severe neck pain and back pain with numbness of the 4^th and 5^th fingers of both hands.  Neck flexion increased severe neck pain and finger numbness.  He also complained of pricking pain in the dorsum of both hands and stomach problems.  He could not perform delicate finger movements including typing and grabbing.

10.  The appellant arranged for an X-ray to be taken.  According to the appellant, the X-ray showed that the complainant had reverse curve in his cervical region, degeneration joint disease at C3 to C5, degeneration joint disease at L3 to L5, and narrowing of inter-vertebral foramen at L4/L5 and L5/S1.  After examination, he made the diagnosis of cervical, thoracic and lumbar subluxation[6].

11.  From 4 July 2008 to 8 January 2010, the appellant provided to the complainant 38 sessions of “regular chiropractic treatment”.  Such treatment included the following manipulations or adjustments: (a) manipulation of the neck towards the left and right in sitting position; (b) low back manipulation in side posture; (c) anterior thoracic manipulation in supine posture; (d) low back flexion-distraction treatment by an automatic flexion-distraction table.

12.  Seven months later, on 20 August 2010, the complainant consulted the appellant again because of wry neck (i.e. torticollis).  After examination, the appellant made the same diagnosis of cervical, thoracic and lumbar subluxation.  He performed chiropractic adjustments on the complainant’s C1, T1 and sacrum.  According to the complainant, the treatment included all the four manipulations or adjustments described above, similar to those in the previous 38 sessions.

13.  A few days later, the complainant went to Macau to attend a training workshop for teachers.  During and after the trip, he had numbness of his toes and could not walk steadily due to incoordination of his legs.

14.  On 30 August 2010, the complainant consulted the appellant.  The Committee accepted his evidence and found that he told the appellant he had incoordination of his legs with unsteady gait and complained of leg numbness[7].  The Committee found that the appellant did not pay proper attention to the complainant’s symptoms, he ignored the complainant’s subjective complaints and objective signs, found there was not much difference in the complainant’s condition, and gave the complainant cervical, thoracic and lumbar treatment “as usual”.  The last stage of the treatment was the automatic flexion-distraction table, when the appellant left the treatment room[8].  These findings of fact are not challenged on appeal.

15.  There was some dispute as to the complainant’s reaction to the treatment on 30 August, whether he had screamed out in pain during the flexion-distraction treatment.  The Committee did not find it necessary to resolve this dispute.  It was common ground that after the treatment, the complainant complained of numbness of the lower limbs, and the appellant told him it was a normal reaction and he was to take a rest in the waiting area before leaving the clinic[9].  This was the first time in all his consultations that the complainant had leg numbness after treatment and required assistance.  The clinic assistant offered to call a taxi for the complainant to take him home[10].

16.  On 1 September 2010, the complainant called the appellant’s clinic and complained that the lower limb numbness did not subside.  The appellant asked him to return for a further examination on 3 September.  The complainant eventually went back on 14 September, when the appellant examined him and performed cervical, thoracic and lumbar treatment.

17.  On 27 September, the complainant had a sudden onset of lower limb weakness and could not walk.  He was admitted to the accident and emergency department of a public hospital.  MRI on 28 September showed cervical disc prolapse causing spinal cord compression at C4/C5 and C5/C6, and compression was more marked at C5/C6 with cord oedema.

18.  On 6 October 2010, MRI taken in another public hospital showed developmentally small calibre cervical spinal canal, disc protrusion with cord indentation though no compression at C4/C5, and disc protrusion leading to severe compression at C5/C6, associated with focal cystic myelomalacia.  On 8 October, the complainant underwent emergency operation for anterior spinal fusion of cervical spine in that hospital.

19.  The Committee took the view that all chiropractic treatment must be based on a proper diagnosis of the patient’s clinical condition and making a proper diagnosis is an essential part of any chiropractic treatment.  The chiropractor should start with a working diagnosis and then monitor the patient’s response to treatment to determine whether any differential diagnosis has to be considered.  Appropriate steps to arrive at a proper diagnosis include clinical examination which includes orthopaedic and neurological examination.  Although neurological examinationis not always necessary, this should be performed if indicated by the patient’s condition, and, depending on the outcome of the examination, further diagnostic investigations such as MRI may be required[11].

20.  Neurological examination involves quick and simple tests.  The appellant did not do any neurological examination on the complainant at any time.  He never did any neurological examination in his 17 years of chiropractic practice except for the initial period[12].

21.  The Committee made these salient findings:

(1)  In July 2008, the complainant had a history of bilateral numbness of the 4^th and 5^th fingers, which increased on flexion of neck.  He could not perform delicate finger movements.  These were possible signs of spinal cord compression, and required neurological examination to be performed[13].

(2)  When the complainant came back for treatment on 20 August 2010 with further complaints, the appellant should have conducted thorough examinations to ascertain whether the previous diagnosis still applied[14].

(3)  When the complainant presented on 30 August 2010 with gait disturbance and complained of leg numbness which suggested further worsening of his condition, there was all the more reason that the appellant should have done neurological examination to find out whether there was any neurological impairment.  Neurological examination was required on 30 August.  The appellant did not pay proper attention to the complainant’s symptoms and did not perform relevant examinations to verify the complainant’s condition.  He only gave routine treatment to the complainant as if his condition remained the same throughout[15].

(4)  The complainant had leg numbness after treatment on 30 August.  This called for further examination such as checking his gait in walking and asking further questions to ascertain the cause of numbness.  The appellant did not recognise the significance of this and told the complainant it was a normal reaction and simply asked him to take a rest[16].

22.  None of the above findings are challenged on appeal.

23.  Based on the findings, the Committee found all three charges established for these reasons:

(1)  In respect of charge (a) (provision of inappropriate chiropractic treatment to the complainant on 30 August 2010), the Committee had this to say:

“We have found that on 30 August 2010 the [appellant] did not pay proper attention to the Complainant’s symptoms. He failed to perform adequate examination. In doing so, he had failed his professional duty to take the proper steps to diagnose the Complainant’s condition as the basis for his treatment. This is conduct below the standard expected amongst registered chiropractors. As diagnosis is an essential part of treatment, the treatment was inappropriate.” [17]

(2)  For charge (b) (failure to give proper explanation and advice before providing treatment on 30 August 2010), the Committee said:

“Given that on 30 August 2010 the [appellant] did not perform the proper examination to diagnose the Complainant’s neck condition, he could not have provided a proper explanation about the Complainant’s neck condition. … Furthermore, the [appellant] did not advise the Complainant about the effect and associated risks of the treatment which were particularly significant in the context of cervical disc prolapse. In fact, he could not have given such advice, as he was not even aware of the underlying condition of the neck.

A chiropractor has the professional duty to ascertain the patient’s condition and the risks of a particular treatment, and to advise the patient of any such risks so that the patient can make an informed decision on the proposed treatment. Simply telling the patient what he will do, without a proper explanation of the risks, is not sufficient for this purpose, as the patient will not know the implications of such treatment to his health and safety.”[18]

(3) For charge (c) (failure to take appropriate follow-up action after the treatment on 30 August 2010), the Committee said this:

“We accept that the Complainant indicated that he had severe numbness of his legs. Numbness after treatment is alarming, in particular given the Complainant’s history of bilateral numbness of fingers. The [appellant] should have performed further investigation to ascertain the cause of the numbness, in order to find out whether there were underlying conditions which would require immediate management. The [appellant] failed to do so.”[19]

The proper construction of charge (a)

24.  Mr Mok addressed us first on the literal interpretation of the wording of charge (a).  This alleged that the appellant “provided inappropriate chiropractic treatment to the complainant on 30 August 2010 (“the treatment”) after which he felt numbness and weakness in his lower limbs”.  The nub of the charge was “inappropriate chiropractic treatment”.

25.  He submitted that on the wording of the charge, the inappropriateness of the chiropractic treatment was reflected in the words “after which [the complainant] felt numbness and weakness in his lower limbs”.  This clearly refers to manipulations and flexion-distraction treatments carried out on 30 August, which allegedly led to physical harm suffered by the complainant.  On the face of the charge, there is not a hint the allegation relates to the appellant’s failure to perform neurological examination.

26.  On the contextual interpretation of the charge, Mr Mok made his submission with reference to the letters of complaint of the complainant, the way the Legal Officer opened the case for the prosecution, the way the case for the prosecution was presented in the expert report of Dr Ng, and the way in which the appellant’s trial counsel had understood the case he had to meet in the charge.

27.  Mr Mok emphasised that in the complainant’s letters, his real complaint was the treatment carried out by the appellant on 30 August 2010, which allegedly caused numbness in his limbs.

28.  In the submissions of the Legal Officer on the first day of the disciplinary hearing and his short opening, he had said:

“The charge set out that received treatment then received numbness. That’s very clear. The second charge said you have not properly advised [the complainant] about this risk, numbness. Of course it’s clear, obvious. Third charge, they had not follow-up. It cannot even be clearer.”[20]

“And specifically, as you can see in charge (a), that after that treatment that was given on day, the patient felt numbness and weakness. And then, it is on that basis that we proceed with charge (b). It’s about the failing to give proper advice for an informed consent. And also on charge (c), dealing with what happened eventually. … And after this specific treatment of 30 August 2010, then we say … the treatment aggravated prolapsed disc, a condition that was persisting at that time. And as a result, one month afterwards, that the patient have [sic] to receive surgical treatment from the public hospital …”[21]

“… our case is not that all the treatment resulted from [the appellant’s] treatment. But we say, to certain extent, he will be held responsible. So we must know what the condition of the patient was. It must be by reference to his conditions after the treatment on 30^th [August 2010], that is in September and then in October. It’s on that basis I think the Secretary is entitled to lead evidence about those information.”[22]

29.  Mr Mok pointed to the above passages and submitted that there was no allegation whatsoever at the opening submission that the appellant failed to perform neurological examination, and this clearly indicated the nub of the Secretary’s case was that physical harm was caused or aggravated by the inappropriate chiropractic treatment, rather than the wholly different case of failure to perform a neurological examination.

30.  As for the expert report of Dr Ng, Mr Mok made the point that although Dr Ng had mentioned the need for neurological examination, this was only in relation to charge (c) and not in respect of charge (a).

31.  Lastly, Mr Mok referred to the appellant’s witness statement to make the point that the appellant’s trial counsel was not preparing or presenting a case against any allegation of lack of neurological examination in charge (a), but rather that the appellant’s evidence was designed to counter the suggestion that inappropriate chiropractic treatment was given to the complainant.  Hence, the appellant emphasised in his witness statement that “in none of the adjustment therapy [has the appellant] touched upon the Complainant’s C4 to C6”[23].  He did not mention neurological examination in his witness statement. Similarly, the appellant’s chiropractic expert Dr Tong Yau Tin (“Dr Tong”) did not mention neurological examination in his expert report and focused on the condition of the complainant right after the treatment on 30 August 2010[24] and whether the treatment of C1 would lead to the prolapse of C4/5 and C5/6[25].

32.  Mr Mok submitted that whether taking a literal or contextual interpretation of the wording of charge (a), the charge was clearly dealing with “inappropriate chiropractic treatment” on 30 August 2012, which resulted in “numbness and weakness”, and there was no allegation in the charge that it targeted the absence of a neurological examination.  In stating in §33 of its judgment that “as diagnosis is an essential part of treatment, the treatment was appropriate”, Mr Mok criticised the Committee as playing with words and unjustifiably stretching the “inappropriate chiropractic treatment” to cover the absence of a neurological examination.

33.  I do not agree with Mr Mok’s submission that “inappropriate chiropractic treatment” in charge (a), when construed properly in context, would not cover the absence of neurological examination.

34.  On a general level, as stated in §14 of the judgment of the Committee, “the basis for any chiropractic treatment is the clinical condition of the patient, as the treatment must be directed towards and suitable for the patient’s condition” and “all chiropractic treatment must be based on a proper diagnosis of the patient’s clinical condition”.  Hence, “making a proper diagnosis is an essential part of any chiropractic treatment” and it is “an important part of treatment”.  This is not unjustifiably stretching the meaning of “chiropractic treatment”.  Part III of the Code of Practice laid down by the Chiropractors Council Hong Kong in July 2002 stated that “proper clinical diagnosis is stressed to distinguish the conditions between those that can be treated by the registered chiropractor and those that cannot” and “the registered chiropractor should refer any condition that needs alternate care to the appropriate health practitioner”.  This part of the Code of Practice was mentioned in §16 of the judgment of the Committee.

35.  On a specific level, the question is what clinical examination should be carried out to arrive at a proper diagnosis of the complainant’s clinical condition.  This would depend on the subjective complaints and objective symptoms of the complainant at the material time.  As stated in the expert report of Dr Ng, the complainant presented complaints and symptoms indicating the possibility of neurological impairment, even at the initial consultation in July 2008.  At that time it was severe neck pain with numbness of bilateral 4^th and 5^th fingers, aggravated by neck flexion, with difficulty of performing delicate finger movements.  Dr Ng drew the inference from his review of the complainant’s cervical radiographs taken in October 2010 that the X-rays of the complainant taken in July 2008 on the appellant’s advice must have shown the complainant had cervical spinal canal stenosis.  As stated in §19 of the judgment, neurological examination should be performed to ascertain whether there was any neurological impairment, and if so, the extent of it, as a patient with spinal cord compression is a risk factor in, and can be a relative contraindication for, chiropractic treatment.

36.  The complainant came back for treatment with further complaints and symptoms on 20 and 30 August 2010.  What made the chiropractic treatment on 30 August 2010 “inappropriate” was not just the numbness and weakness of the lower limbs after the treatment, but the failure to make a proper clinical diagnosis in the first place to distinguish between the conditions that can be treated by the registered chiropractor and those that cannot in light of the complaints and symptoms of the complainant at the material time.

37.  In my view, the above are the relevant surrounding circumstances that should be taken into account in construing “inappropriate chiropractic treatment” in the context of a patient with underlying issues of neurological impairment.

38.  In the proper construction of “inappropriate chiropractic treatment” in the charge, I do not find it helpful to place undue emphasis on the harm alleged to have resulted from the manipulations and flexion-distraction treatments, whether it be the numbness and weakness in the lower limbs mentioned in the letters of complaint, or the aggravation of prolapsed disc stated by the Legal Officer in his opening address.

39.  Nor do I think it right to attach significance to the fact that in Dr Ng’s report, he did not mention neurological examination specifically when he gave his opinion on charge (a), and only mentioned the need for such an examination when he discussed charge (c).  It would not be right to infer from this that charge (a) was not meant to target the absence of neurological examination.

40.  Dr Ng’s report is readily explicable because he was not provided with information (which only came out in the oral testimony of the complainant at the hearing) that the complainant had numbness of the lower limbs and gait disturbance even before the treatment on 30 August 2010 and not just immediately after.

41.  As for the appellant’s understanding of the gravamen of the allegation in charge (a), it would appear from the report of his expert Dr Tong that one of his lines of defence was that “there was no sign of impairment of neurological function in both of the 20/8/10 and the Aug 30 2010 visits, and the previous 38 chiropractic treatments had proved themselves to be helpful to the complainant, therefore, it is quite appropriate for a chiropractic clinician ([the appellant]) to proceed with his regular chiropractic treatment skill to help the patient”[26].  On the premise as stated by Dr Tong, the case for the defence would be that neurological examination was not necessary because there was no sign of neurological impairment.  This cannot provide support for the appellant’s contention that “inappropriate chiropractic treatment” cannot be construed to target the absence of neurological examination.

42.  For the above reasons, I reject his contention that the failure to perform a neurological examination cannot be the subject of charge (a), properly construed.

If there was unfairness of procedure

43.  The other broad ground of attack launched in respect of charge (a) is procedural unfairness at the disciplinary hearing.  I bear in mind the relevant yardstick of overall fairness to the person against whom misconduct is alleged, that he should be given a fair opportunity of hearing what is alleged against him and of presenting his own case, and whether there is reason to believe that he is genuinely disadvantaged which could have rendered the hearing unfair to him (To Chun Fung Albert v Medical Council of Hong Kong [2002] 1 HKC 571 at §30).

44.  The procedural unfairness was said to arise in a number of ways.

45.  Firstly, Mr Mok submitted that the notice of referral sent to the appellant dated 10 April 2012 did not constitute an “adequate statement of the substance of the complaint” of charge (a) within the meaning of section 17(2) of the CRO and section 17 of the CR.

46.  Whether charge (a) would constitute an “adequate statement of the substance of the complaint” must be considered in the context of the disciplinary proceedings.  This must be looked at against the backdrop that we are here concerned with quasi-judicial proceedings of a domestic tribunal where the proceedings can be said to be informal in contradistinction to the formality of judicial proceedings (To Chun Fung Albert, §23).

47.  Further, before the notice of referral was issued, there had been proceedings of the preliminary investigation committee, in which the complainant’s letters were provided to the appellant and the appellant had given his detailed response thereto.  In his letter, the complainant stated that when he started receiving treatment from the appellant in 2008, he was explained he had “some kind of misalignment with the neck” and the appellant suggested he should receive manipulation treatment.  He received regular treatment from the appellant until January 2010, during which period he was not explained about the risk of manipulation and was not told his finger numbness might be related to spinal cord compression.  He asserted that if he was provided with that kind of information, he might have decided not to receive chiropractic treatment.  He then described the treatment given on 20 and 30 August 2010, after which his “nightmare” started.

48.  The appellant defended the complaints against him on the basis that he had made proper investigation in arriving at a proper diagnosis for an appropriate treatment.  He carried out a “thorough spinal examination” on 20 August and a “detailed and regular chiropractic examination” on 30 August, made the diagnosis of “cervical, thoracic and lumbar subluxation” and then performed chiropractic adjustments on C1, T1 and the sacrum.  And, as mentioned earlier, the appellant had obtained expert evidence from Dr Tong in support of his case that there was no sign of impairment of neurological function of the complainant on his visits on 20 and 30 August 2010.

49.  So long as the charge is sufficiently stated to enable the appellant to prepare his defence, it should be regarded as an adequate statement of the substance of the complaint (To Chun Fung Albert, §24).  Given the particular circumstances, I am satisfied that charge (a) did constitute such a statement.

50.  Next, Mr Mok submitted that the Committee had wrongly refused the appellant’s application at the outset of the hearing for further and better particulars of the charges, so the appellant was denied the right to have properly particularised charges.  He also submitted there was a fundamental shift in the Secretary’s case in that the issue of neurological examination only emerged in the course of the appellant’s cross-examination on 9 September 2013[27] and the Legal Adviser then put questions to the appellant after the cross-examination by the Legal Officer in an attempt to “help [the appellant] to understand the secretary’s case”[28].  Mr Mok said that was far too late to raise a fundamentally different case without giving prior notice, injustice was occasioned to the appellant who should have been given an adjournment to deal with it by leading different evidence (Re Lo-Line Electric Motors Ltd [1988] 2 All ER 692 at 697d to f).  Further, the procedure in section 33(1) of the CR for amending the charge was not complied with, so the appellant was deprived of the protection in section 33(1)(b) of a reasonable adjournment to prepare his further defence, to recall any witness to give evidence, and to call any other witness to give evidence if necessary.

51.  It would be appropriate to deal with these complaints together as the course the disciplinary hearing took should be considered in the round to see if the appellant did or did not receive a fair trial.

52.  The hearing took seven days, over various dates in February, March, September, October 2013 and January 2014.  On the first day of 22 February 2013, the Committee dealt with the appellant’s application for further and better particulars of the charges, his application to be supplied with a witness statement of the complainant, and his application for a two-hour adjournment to take instructions arising from the oral testimony of the complainant.  The Secretary had made a short opening of his case on that day and the complainant had completed his evidence in chief.

53.  At the outset, the appellant applied for further and better particulars of each of the charges against him.  In respect of charge (a), he sought particulars as to “what exactly was the chiropractic treatment in question and how was it inappropriate under the circumstances”[29].  His counsel submitted that all the charges were defective because the appellant did not know and would not be able to know the nature of all the charges he had to meet before the commencement of the hearing, the charges were vague and non-specific and it was in breach of natural justice[30].  His counsel explained he wanted to ensure that they would be dealing with “concrete aspects of the treatment”, so for example in a chiropractic treatment of an hour within which several types of treatment were given, which part of those treatments the prosecution was particularly talking about, so he would meet that treatment in his defence[31].

54.  This was resisted by the Legal Officer who made the point that the charges as stated were sufficiently clear, given the preliminary investigation procedure that had been gone through[32].  The appellant had been given “very clear statement” from the complainant, and later there was “very clear report from [Dr Ng], pinpointing the area”, it could not be the case the appellant had no idea what his case was all about[33].  The Legal Officer submitted that charge (a) was a “general charge” that would allow the Committee “to look and delve into different aspects to see which part [the appellant] has done wrong”, so the Secretary should not confine or restrict the Committee to “burden the charge with the specificity required and to limit it to that particular treatment”[34].

55.  The Legal Adviser advised the Committee on the principle of overall fairness in To Chun Fung Albert, and that they should consider whether the appellant was given sufficient notice of what was alleged against him so he could properly prepare for his defence[35].  The Committee then adjourned for deliberation, and overruled the appellant’s objections to charge (a) that it was defective[36].

56.  The complainant was called to give evidence after a lunch break of 45 minutes.  As mentioned earlier, no witness statement was obtained from him.  The appellant was merely provided with three letters of complaint written by or on behalf of the complainant.

57.  During the examination in chief, the appellant’s counsel applied to be provided with a witness statement of the complainant, as they were “treading into many areas that are not mentioned even a bit in previous letter of complaint” and he did not know “what other details will come out in the following evidence-in-chief”, citing the Practice Directions on disciplinary inquiry that each witness to testify should have a witness statement prepared and provided to the opposite party not less than ten days before the inquiry[37].

58.  The Legal Officer suggested to the Committee to continue with the complainant’s examination in chief for all the evidence to be brought out and if the Committee should find any part of it would amount to an ambush on the appellant, he would make no objection to the appellant’s application[38].  The Legal Adviser gave similar advice to the Committee[39].  The chairman then told the appellant’s counsel they would continue with the complainant’s evidence in chief, and if the prosecution should go beyond what was said in the documents already supplied to the appellant, then he should “raise [his] applications and ask for adjournment, so that [he] can take [his] client’s instructions accordingly”[40].

59.  The complainant continued with his evidence in chief, in the course of which he testified about the symptoms of numbness of his toes and the soles of his feet during and after his trip to Macau, and for which he consulted the appellant on 30 August 2010.  This is an important piece of evidence that emerged only in the oral evidence of the complainant.

60.  After the Legal Officer indicated he had completed the examination in chief, and before the cross-examination began, the appellant’s counsel sought a two-hour adjournment so he could take instructions from the appellant “about the new maters that arose from the oral testimony” they just heard[41].  The Legal Officer accepted the complainant gave evidence he found something wrong during the Macau trip, but submitted that piece of evidence and other evidence given were not new matters amounting to an ambush[42].  The Legal Adviser advised the Committee to make a distinction between details to supplement the evidence shown in existing documents and new evidence not indicated in any way in the documentary evidence[43].

61.  The Committee granted the two-hour adjournment, in light of the arguments of the appellant’s counsel and the principles of procedural and natural justice[44].  As it was already past 3:20 pm, the proceedings were adjourned to another day.

62.  The hearing resumed a month later on 22 March 2013.  The appellant’s counsel conducted his cross-examination of the complainant, with his expert Dr Tong remaining in the room.  The cross-examination was not completed that day as the complainant had to leave early.  Before the tribunal adjourned, and in the absence of the complainant, the Legal Officer made a clarification on the Secretary’s case that it was simply that “there is no specific advice on the risk of the cord damage”, so there would be no need to waste further time on issues the prosecution was not challenging or not taking[45].

63.  The third day of the hearing was some five months later, on 3 September 2012.  The appellant’s counsel resumed and completed his cross-examination of the complainant.  When the Legal Officer re-examined the complainant, he asked about the symptoms the complainant had during and after the trip to Macau[46].  The appellant’s counsel objected to this as not arising from cross-examination[47].  The chairman allowed the questioning[48].  So further evidence was led on the symptoms the complainant experienced and he mentioned there was co-ordination problem with his gait and he told his problems to the appellant on 30 August[49].

64.  There was then questioning of the complainant by members of the Committee.  The complainant was asked about the symptoms he had between 20 and 30 August and what he told the appellant on 30 August[50].  The appellant’s counsel was allowed to cross-examine on matters arising from the members’ questions.  He asked the complainant when he first experienced numbness of the lower limbs and suggested to the complainant there was no numbness of the lower limbs before 30 August[51].

65.  It is not correct as submitted by Mr Mok that the need for neurological examination was brought up only in the cross-examination of the appellant on the fourth day of the hearing.  Dr Ng was called as the only other witness for the Secretary on 3 September and he gave evidence at some length in his evidence in chief and the questioning by some of the members about the need for neurological examination in this instance, and specifically with reference to the symptoms of the complainant between 20 and 30 August[52].  This also came out in the appellant’s cross-examination of Dr Ng[53].  The Legal Adviser also clarified for the appellant’s counsel that none of the charges related to the causation of the complainant’s problems[54].

66.  Having reviewed in some detail how the hearing was conducted, I am not persuaded by Mr Mok that the appellant did not have a fair hearing for one reason or other.  For a start, I do not think it could be said that the appellant had insufficient notice of the gravamen of the allegation against him in charge (a), for the reasons I have already given when I discussed whether the charge was an adequate statement of the substance of the complaint.  His defence was simply that there was no sign of neurological impairment of the complainant on 30 August, hence the examination, diagnosis and treatment on that day was proper.  It could not be said that the appellant was unaware that the treatment was alleged to be inappropriate in the light of the patient’s condition which was not properly diagnosed.

67.  I do not agree with Mr Mok there was a fundamental shift in the case of the Secretary.  I accept there was some change in the Secretary’s case as the hearing progressed, but that was not a fundamental shift or a wholly different case.  The change was due to important evidence given by the complainant of the symptoms of neurological impairment between 20 and 30 August 2010 and that he had told the appellant about them on 30 August.  Whereas in Dr Ng’s report he could only say in respect of charge (a) that the appellant had to “exercise caution” when treating the complainant on 30 August given the information he had at the time, having heard the additional evidence Dr Ng was able to say positively that neurological examination was required before the treatment on 30 August, just as what he had said about charge (c) in his report.

68.  It would have been better if the prosecution had applied to amend charge (a) to make it absolutely clear it was alleged in the charge that the appellant had failed to pay proper attention to the complainant’s symptoms on 30 August and had failed to carry out proper examination.  But given the way the hearing was conducted, I am satisfied that the appellant did have sufficient notice of the additional evidence and more than sufficient opportunity to prepare for his defence to deal with the additional evidence of the complainant given on the first day.  He sought and was granted a two-hour adjournment, which was in effect an adjournment for one month, and his counsel did not carry out the cross-examination of the complainant until some five months later.  The chairman had made clear to his counsel that he could seek an adjournment to take instructions if there should be new evidence not indicated in any way in the documentary evidence.  His case quite simply was that there was no sign of neurological impairment and the complainant did not tell him about it before the treatment on 30 August[55].

69.  I am satisfied there was no procedural unfairness or breach of the rules of natural justice in these circumstances.  For all the above reasons, I reject the grounds of appeal in respect of charge (a).

Charge (b)

70.  This charge is concerned with the failure to give proper explanation and advice to the complainant before providing the treatment to him on 30 August.  Mr Mok’s submission here was that charge (b) was linked to charge (a), because “treatment” in charge (b) was as defined in charge (a).  So once the appellant is absolved on charge (a) for “inappropriate chiropractic treatment” for the reasons he submitted above, there is no basis for saying that the explanation or advice was improper and charge (b) would fall away.

71.  As I have rejected all his submissions on charge (a), his submissions on charge (b) would fail.

Charge (c)

72.  This charge relates to the failure to take appropriate or necessary follow-up action immediately after the treatment on 30 August when the complainant indicated severe numbness in his lower limbs.  Mr Mok submitted if there was no “inappropriate chiropractic treatment” on 30 August, follow-up action would not be necessary so charge (c) would fall away.

73.  I do not agree with him charge (c) is linked to charge (a) in the way as he has submitted.  It seems to me charge (c) is a standalone complaint.  Regardless of whether the treatment on 30 August was “inappropriate chiropractic treatment”, given that the patient complained to him of severe numbness in his lower limbs, which he had never experienced on past occasions after receiving treatment, the appellant should have investigated the cause of the numbness instead of just telling the complainant to rest for a while before sending him away.

Conclusion

74.  For all the above reasons, I would dismiss the appellant’s appeal, with an order nisi that the appellant should pay the respondent’s costs.

Hon Barma JA:

75.  I agree.

Hon McWalters JA:

76.  I agree.