DR WONG TAK LUN v. THE MEDICAL COUNCIL OF HONG KONG

CACV 57/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 57 OF 2013

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL OF
HONG KONG MADE ON 28^th FEBRUARY 2013)

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JUDGMENT

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Hon McWalters JA (giving the judgment of the Court):

Introduction

1.  The appellant applies for leave to appeal to the Court of Final Appeal pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 from a judgment of this Court dated 21 February 2014.  The judgment of this Court was given in an appeal by the appellant from an order made by the respondent in a Disciplinary Inquiry held pursuant to section 21 of the Medical Registration Ordinance, Cap 161.

2.  At the Disciplinary Inquiry the appellant admitted professional misconduct by issuing to a patient two sets of original receipts in respect of the same treatment.  The charge which he admitted alleged that he was guilty of misconduct in a professional respect by a failure to exercise due care.  On this basis, and under the misapprehension that the appellant was of clear record, the respondent ordered that a warning letter be sent to the appellant.

3.  On becoming aware that the appellant had a serious prior disciplinary conviction based upon a criminal conviction involving the misuse of medical records for fraudulent purposes, the respondent reviewed its order and substituted for it an order that the appellant’s name be removed from the General Register for 1 month.  The punishment that was imposed for the prior disciplinary conviction was a 6 month removal order suspended for 2 years, and the period of its suspension was still in operation at the time of the commission of the misconduct giving rise to this appeal.  In respect of the suspended removal order imposed for the previous conviction the respondent determined that 3 months of it should be activated to run consecutively to the 1 month removal order imposed in respect of his current misconduct.

4.  Prior to making these much more severe orders, the respondent reassessed the basis of the appellant’s liability and, in effect, no longer viewed his misconduct as being due to a failure to exercise due care but characterised it as tainted by  mala fides because, by his conduct, he was rendering dishonest assistance to a patient to make parallel insurance claims in a way that would conceal what was being done.

5.  The respondent also made a recommendation that two conditions be imposed on the appellant’s right to practise should he ever seek to be restored to the General Register.

6.  The appellant appealed to the Court of Appeal against:

(i) the order of removal from the General Register for a period of 1 month in respect of the instant episode of misconduct;

(ii) the activation of 3 months of the suspended removal order in respect of the previous episode of misconduct; and

(iii) the recommendation that two conditions be imposed on his future right to practise.

7.  On appeal, we found that the respondent had erred in sentencing the appellant on a basis of liability different from that with which he was charged and allowed the appeal.  We sentenced the appellant afresh and in respect of the current offence imposed a 1 month removal order and in respect of the past offence activated 1 month only of the suspended removal order and further ordered that this activated 1 month removal order run consecutively to the 1 month removal order for the current offence.

8.  In respect of the recommendation made by the respondent we dismissed the appeal as the recommendation was not part of the respondent’s order and not binding upon the Medical Council when it sits in adjudicating any future application by the appellant for restoration to the General Register.

The Application

9.  In his Notice of Motion the appellant states that the grounds of his application are:

“1. The applicant should be given Leave to Appeal pursuant to Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) in that the Appeal involves questions of great general or public importance, namely:-

(1) Whether “Recommendations” forming part of the Medical Council’s Order following a Disciplinary Inquiry pursuant to Section 21 of the Medical Regulation (sic) Ordinance (Cap 161) should be subject to Appeal to the Court of Appeal in the same way that the Findings of Fact and/or Disciplinary Penalties are.

2. Further or alternatively, the Applicant should be given Leave to Appeal pursuant to Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) on the ground that the Appeal ought otherwise be submitted to the Court of Final Appeal for decision having regard to the question raised at 1 above and also given:-

(1) The Court of Appeal erred in awarding the same 1 month’s Removal from the General Register as had the Medical Council, and in partially activating the Suspended Removal Order, despite finding that the Applicant’s conduct:-

(a) Involved neither “mala fides” nor “dishonestly”, nor knowing assistance to a patient to conceal the making of parallel insurance claims;

(b) Did not amount to “breach, betrayal and abuse of the public trust in the medical profession”;

(c) Was, rather, “reckless”.

(2) The Applicant’s conduct was therefore less serious, which as a matter of principle, should have resulted in a lesser penalty.”

10.  In support of his arguments that the “Recommendations” made by the respondent should be subject to appeal and that the issue of whether they are so subject is a question of great general or public importance, Mr McGowan for the appellant, submits that, in their practical effect, the recommendations are the same as other parts of the order.  He says that it is unfair to the appellant to require him to have to wait until they have been utilised for that would then lead to further delay in the appellant getting himself restored to the General Register.  Consequently, he says, the recommendation should be subject to judicial scrutiny at the same stage as the order.  For the same reasons the appellant asserts that we should also conclude the question is one which otherwise ought to be submitted to the Court of Final Appeal for decision.

11.  Under the “otherwise” limb the appellant also raises his second ground of appeal which is essentially that in our fresh exercise of the sentencing discretion we erred by the orders we made by imposing an identical, and therefore equally severe, punishment on the appellant notwithstanding that we were sentencing him on a different and less culpable basis than the respondent had done.  Mr McGowan’s argument in support of his contention is as follows:

(i) disciplinary bodies such as the respondent are in the best position to assess the appropriate punishments for different types of professional misconduct;

(ii) here, the respondent assessed a 1 month removal order as appropriate for the present misconduct but that assessment was flawed as it was based on an erroneously reached view of the appellant’s culpability;

(iii) the correct view of his culpability is a less serious one;

(iv) therefore the correct punishment for that less serious view of his culpability must be a less severe punishment than that imposed by the respondent.

Discussion

12.  In respect of the first ground of appeal we are of the view that the question is unarguable and is, therefore, not a question of great and general public importance.  The right of appeal under the Medical Registration Ordinance, Cap 161 is confined by the Ordinance to an order made by the Medical Council under section 21 of that Ordinance.  The recommendation is not an order which the Council is empowered to make under section 21.

13.  The recommendation is nothing more than supplementary comments to which a future, perhaps differently constituted, Medical Council may or may not have regard when independently making its own decision in respect of any application by the appellant for restoration to the General Register.  Furthermore, in making this independent decision this future Medical Council would, when considering the non-binding comments of the respondent, take into account that those comments flowed from a view of the appellant’s culpability which this Court has said was reached by a flawed process.

14.  For these reasons we decline to grant leave in respect of the first ground of appeal.  For the same reasons we do not think leave should be granted in respect of the same issue under the “otherwise” limb of section 22 (1)(b) of Cap 484.

15.  The second ground of appeal, in effect, argues that because this Court was making an order against the appellant on a different and lesser view of his culpability than that on which the respondent based its orders, this Court was obliged to impose a lesser penalty than that imposed by the respondent.  This argument must have “an utmost probability, or even virtual certainty” of success in order to qualify for leave under the “otherwise” limb.[1] The punishment imposed by this Court was arrived at by a fresh exercise of the sentencing discretion after an assessment by this Court of the appellant’s culpability.  That this Court independently arrived at the same punishment imposed by the respondent in respect of the present incident of misconduct does not necessarily mean that this Court must have erred in the exercise of its sentencing discretion.  We decline to grant leave in respect of the second ground of appeal.

Conclusion

16.  For the reasons we have given we refuse the application and order that the costs of the application be awarded to the respondent.