NG MEI SIN v. THE MEDICAL COUNCIL OF HONG KONG

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J U D G M E N T

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Mortimer, J.A.: The appellant is a registered medical practitioner. In 1993 she was practising from a clinic in Tsuen Wan. On 10th May 1993 the clinic was visited by two pharmacists and a doctor. They found that the appellant had failed to keep proper records of eight different dangerous drugs which were held by her on her premises and at her home.

2. On 16th December 1993 she was prosecuted in the Magistrates Court with eight offences. She pleaded guilty and the court fined her a total of $20,000. Also the drugs concerned were forfeited.

3. Previously she had been the subject of an inquiry by the General Medical Council of Hong Kong who wrote to her on 13th March 1993 specifying complaints that on five occasions during 1991 she had supplied drugs of addiction or dependence otherwise than in bona fide treatment.

4. There were two matters for which the General Medical Council of Hong Kong sought to discipline her - the conviction for the eight offence of failing to keep proper records of dangerous drugs and also for professional misconduct in prescribing drugs otherwise than in bona fide treatment.

5. She appeared before the Medical Council on 25th August 1994. With her agreement those two matters were listed on the same day. However, no evidence was offered on the charges of supplying drugs and they were not proceeded with as the recipients could not be traced.

6. She therefore appeared before the Medical Council under s.21(1)(a) of the Medical Registration Ordinance, Cap. 151, for having been convicted in Hong Kong of an offence punishable with imprisonment (not under s.21(1)(b) for having been guilty of misconduct in a professional respect).

7. Those charges were pursued and she admitted them. She was represented by counsel who mitigated on her behalf. The Medical Council ordered that she should be removed from the register for three years. It is against that order that she now appeals; submitting that it should be set aside on the grounds that having regard to the whole of the circumstances it was a manifestly excessive sentence. She also submits that the sentence is out of line with orders made in similar cases over the past five years.

8. The facts before the Medical Council were exactly the same as those which were before the Magistrates Court. The agreed facts were put in evidence. Briefly, the facts were these. At the appellant's clinic were found two books (exhibit 40) which recorded receipts by her of dangerous drugs. There was a bundle of records containing the balances of drugs which were kept at her clinic between 1st January 1993 and the day of visit, the 10th May 1993; those were exhibit 41. There was a memo pad. That recorded supplies of drugs on the 10th May 1993; that was exhibit 39. Also, on another piece of paper, which she produced at the clinic, was a record of drugs which she kept at her home. The search revealed that she had a very large quantity of drugs both in her clinic and kept at her home. The result was that there was a quantity of about 40,000 tablets, and about which proper records were not kept, although there were records - somewhere or another - of all the drugs held save for an insignificant number of 5 tablets out of that 40,000. There were no records of the suppliers from whom the drugs were received. There were records of the persons to whom the drugs had been supplied but no addresses of those persons as there should have been.

9. However, there was a suggestion that the supplier's name appeared on receipts at the clinic which were recovered. They were not examined by the tribunal and what they reveal is uncertain. The addresses of the recipients again did not appear on the records but it was suggested that the addresses would appear on the medical cards or clinical records recording the treatment, and those addresses would be available. Again, this suggestion made by counsel before the Medical Council was not challenged nor were the medical cards examined.

10. On this evidence, therefore, it could not be said that the drugs received, held and supplied were not recorded and were not recorded accurately. There was a large quantity of drugs but the doctor's practice was to treat addicts. She kept some of those drugs in what may be thought to be unorthodox places but no allegation was levelled against her in respect of that matter.

11. Although there is a right of appeal to this Court from the order of the Medical Council and this Court's powers are to affirm, vary or reverse such an order (see s. 26(1) of the Medical Registration Ordinance), this Court is very reluctant to interfere with such an order especially when the only matter appealed against is the penalty or sentence. The medical profession is entrusted with regulating its own affairs and its own members. The Medical Council is uniquely qualified to assess the proper sentence to be imposed upon its members for professional misconduct - whether brought before the Medical Council as this case on a conviction, or in other cases under s.21(1)(b) where other professional misconduct is alleged. It must be a better qualified tribunal to deal with the professional implications of that conduct than this Court. Generally, therefore, we must assume that the Medical Council is a better judge of the appropriate sentence. However, this Court has powers to interfere. It will only interfere where the sentence imposed is plainly and obviously inappropriate and out of tune with the evidence upon which the Medical Council is acting.

12. As Lord Hailsham L.C. said in Libman v General Medical Council [1972] AC 217 at 221E:

"... although the jurisdiction conferred by the statute is unlimited, the circumstances in which it is exercised in accordance with the rules approved by Parliament are such as to make it difficult for an appellant to displace a finding or order of the committee unless it can be shown that something was clearly wrong either (i) in the conduct of the trial or (ii) in the legal principles applied or (iii) unless it can be shown that the findings of the committee were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread."

In this case, the appellant seeks to say that the Medical Council possibly was wrongly influenced by three matters. First, the allegation of wrongful supply of drugs which was proceeded with. Secondly, the quantity of drugs which had been prescribed to some individual patients; and thirdly, the suggestion that the doctor herself lacked proper training for the treatment of addicts.

13. We have been invited to infer that this may have happened. For my part, I am not prepared to do any such thing. The Medical Council is a very experienced tribunal led by an experienced chairman. I note that when questions became irrelevant at the hearing and proper advice was tendered it was immediately accepted by the members.

14. We were also urged to consider that having regard to the punishment imposed by the Magistrates Court, this order imposed by the Medical Council was unnecessary. Of course, it is relevant for the Medical Council to consider the punishment imposed by the court when a doctor is before it for a conviction. But the Medical Council's role is quite different and additional to that of the courts, especially when the conduct is also professional conduct, as in this case. The task of the Medical Council is not only to discipline its members but to protect the public where necessary; to seek to maintain public confidence in the profession; and in its widest sense to seek to maintain the integrity of the profession. The courts are not equipped, nor do they seek, to fulfil all those functions when punishing and deterring crime.

15. The regulations not complied with by the appellant are important. Any breach of those regulations must be treated seriously. They seek to ensure that drugs legitimately supplied to doctors are fully and carefully controlled so that the risk of those drugs falling into the wrong hands is minimised. This is a matter of concern not only to the public but also to the medical profession itself. Lax control of drugs by doctors and suggestions that consequently drugs may go into the market on the street bring the profession seriously into disrepute.

16. But what do the facts of this case show? There can be no suggestion here that any drugs found in the doctor's possession or known to have been received by the doctor had gone or were going to go astray. She may not have kept full records but all the drugs she had received and prescribed or had in her possession were recorded and carefully recorded at that. The discrepancy of only 5 in 40,000 tablets shows this.

17. Whereas there may be some more serious medical or professional aspect of the facts relating to this conviction which impressed the Medical Council this did not come to light during the hearing, and counsel for the Medical Council has not been able to indicate any such more serious feature to us here. Of course, as is its practice, the Medical Council gave no reasons for its order and so we are not able to fathom its thinking on the point.

18. This being so, I am of the opinion that the sentence of removal from the register for three years is one which is quite out of tune with the evidence which was before the Medical Council. It is manifestly and plainly not a sentence which can be supported by the evidence which the Medical Council was entitled to take into account.

19. As I have already said, if there was some other matter known to the Medical Council and not expressed at the hearing or in reasons, then so be it. This is a consequence of the practice of not giving reasons about which I would express no opinion.

20. I turn now to the sentence which I think would be appropriate. There is nothing in the appellant's practitioner's professional or personal record which is in any way to her detriment. This record reflects in her favour. The offences for which she appeared are serious. When records are not kept, the risk of drugs going astray and falling into the wrong hands with all the adverse consequences to the public and the profession is evident. Further, for my part, I am completely unimpressed by the submission that the practitioner did not understand her obligations to record dangerous drugs fully. Those who have the privilege of practising medicine by being registered here in Hong Kong have the duty to discover their obligations to record dangerous drugs and to comply with them.

21. This is therefore, in my view, an offence which does merit a removal from the register, but I would temper such an order by suspending it for a period of one year. I would order that the appellant should be removed from the medical register for a period of three months, but the application of that order should be suspended for a period of one year, not to come into effect subject to the appellant not being found either to have been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment, or to have been guilty of misconduct in a professional respect.

22. I would therefore allow the appeal and substitute such an order.

Godfrey, J.A.: I agree that this appeal must be allowed; and I agree also with the proposal made by Mortimer, J.A. as to the sentence which we should substitute for that passed by the Medical Council. I would add only two points, one general and one particular.

23. Generally speaking, it requires a very strong case for this court to interfere with a sentence passed by a domestic tribunal such as the Medical Council in the present case. (The members of such a tribunal are the best possible people for weighing from the point of view of the profession the seriousness of any charge of professional misconduct or otherwise against a practitioner, as my Lord has indicated. It is important, in my judgment, that no contrary opinion should be encouraged as a result of anything we say in this case.) No general test can be laid down as to when such interference is warranted, for each case must depend entirely on its own particular circumstances. All that can be said is that, if a sentence of such a tribunal as the Medical Council in this case is to be set aside, or varied, this court must be quite satisfied that the sentence was wrong and unjustified. If, for example, it appears to this court that the sentence was wholly out of proportion to the gravity of the offence, that would be a proper occasion for this court to interfere.

24. Particularly speaking, we had placed before us in the present case an analysis of sentences passed by the Medical Council on medical practitioners in a variety of cases over the last 5 years. Having regard to the nature of the offence proved in this case, and to the lesser sentences imposed by the Medical Council for other offences of considerably greater gravity, it does seem to me that the sentence passed here was wholly out of proportion to the gravity of the offence. For that reason, as well as for those given by my Lord, I would judge it right for this court to interfere in the present case as my Lord has suggested.

Rogers, J.: I agree. There is very little that I can usefully add to what has already fallen from my brethren. I should say, however, that I approach this case from a standpoint that it was my initial reaction to the sentence imposed that it was manifestly excessive. That initial reaction has not been altered having heard the careful submissions of counsel.

25. I say that in view of the fact that given the circumstances which have been outlined already in the previous judgments, I consider that the moral and professional turpitude is such that it would not be right in the circumstances, not only immediately to prevent the doctor from practising but prevent her from practising for the next three years. That would not only deprive her of her livelihood but would do so in circumstances which might be expected to have the consequence of forcing her to take other employment in the meantime, perhaps in the long run resulting in her removal from the practice of medicine altogether. I therefore concur with the judgments which have already been given.