DAVID CHOW SIU SHEK v. THE MEDICAL COUNCIL OF HONG KONG

IN THE COURT OF APPEAL

1994, No. 163
(Civil)

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J U D G M E N T

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Liu, J.A.:

1. The appellant was convicted on 21 November 1990 in the High Court on the following counts:-

(1) Conspiracy to defraud, contrary to Common Law - On divers dates between 1 January 1984 and 31 October 1988, in Hong Kong, conspired with Francis Roynon Latimer Carey and Kwok Chun-kwai to defraud the Hong Kong Government, the School Medical Service Board and other participating medical practitioners in the School Medical Service Scheme, and

(2) Conspiracy to defraud, contrary to Common Law - On divers dates between 1 January 1986 and 31 October 1988, in Hong Kong, conspired together with Francis Roynon Latimer Carey to defraud Hong Kong Government, the School Medical Service Board and other participating medical practitioners in the School Medical Service Scheme.

2. On 22 November 1990, the appellant was sentenced to two years' imprisonment on count one as well as on count two, both sentences to run concurrently. He was fined $3m and required to bear one-third of the Crown's taxed costs. On 11 February 1993, the $3m fine was reduced by the Court of Appeal to $1m with an additional sentence of six months' imprisonment in default of payment of that fine.

3. Upon a complaint made against the appellant to the Medical Council, an inquiry was held on 23 August 1994. At the conclusion of the hearing, having been satisfied with the appellant's convictions of offences punishable with imprisonment under s.21(1)(a) of the Medical Registration Ordinance, the Medical Council ordered the name of the appellant to be removed from the register for three years. The appellant feels aggrieved, and this is his appeal.

4. At the inquiry, the appellant was legally represented but confined himself to mitigation. When the inquiry drew to a close, the Medical Council was advised as to its right to "consider any record of the (appellant's) case in which the conviction(s) (were) recorded and any other evidence ...... available and ...... relevant as showing the nature and gravity of the offence(s)". It also took "into full consideration all the materials that (had) been submitted by the defence counsels (sic) for mitigation".

5. Beyond a bare statement, the Medical Council "does not in general give reasons for its decision". See Libman v. General Medical Council (P.C.) [1972] AC 217 at 221A. Such was also noted to be "the Medical Council's usual practice" in Dr Leung Kan Pui v. Medical Council of Hong Kong (Civil Appeal No. 193/94), the judgment of which was delivered by the Court of Appeal on 14 March 1995 (p.3).

6. What bears the brunt of the appellant's attack is the allegedly harsh three-year suspension in the removal order, which is said to be plainly inappropriate and out of tune with the gravity of the offences in his convictions. In support of this core complaint, Mr Harris, counsel for the appellant further submits that the punishment is manifestly excessive and disparate with all but one of the previous orders made by the Medical Council, that the Medical Council took little account of the two years' term the appellant had served, that the Medical Council attached insufficient weight to the lack of evidence against the appellant of rendering less than proper medical care and treatment to his pupil-patients or providing below quality or standard medical services under the scheme, that the Medical Council paid no proper regard to the absence of corrupt activities or activities causing financial loss to Government or the Board, that the Medical Council paid no heed to the view expressed by H.H. Judge Jackson in granting a stay in the District Court of a prosecution against a different accused on almost identical facts, that the Medical Council failed to properly take into consideration the flawed and largely unworkable scheme and that the Medical Council lent little support to his testimonials and personal circumstances.

7. All these factors were set out in an 18-page submission presented to the Medical Council on behalf of the appellant. At the inquiry, the salient features in the written submission were adumbrated by the appellant's solicitor for the benefit of its members.

8. The background facts of this case are these: in 1964, the Hong Kong Government set up the School Medical Service Board for providing inexpensive but effective medical care and treatment to school children. Schools would collect a modest fee of $10 from each pupil who was willing to join this School Medical Service Scheme, for the School Medical Service Board. The Board would in turn pay over the fees to the participating doctors with an additional $65 subsidy for each pupil. Such a fee and government contribution to the doctor would entitle the participating pupil to a year's free and unlimited medical care. A malpractice soon developed, in which doctors or organisations under which they served caused to be paid to the Board the pupil's $10 fee. Such practice was commonly known as "rebating", and the Board publicly condemned it as undesirable and illegal in June 1984. In October 1985, the Board set a ceiling of 3,500 pupils for each participating doctor under the scheme and strictly required payments to be personally made to the participating doctor concerned. The appellant's breaches of these requirements led to his convictions.

9. The appellant maintained a list of names of doctors, including the names of some who had left his employment, so as to make it appear that the maximum allocation to each was less than 3,500 pupils. He also caused payments to be deposited into bank accounts opened in the names of these doctors, including those of fictitious ones, for running a string of clinics which were fed by a large pool of pupil-patients. He derived a substantial profit from his devious manipulations. These illicit activities of the appellant were carried on for more than four years, close to five, before he was exposed. This was downright dishonesty on a grand scale.

10. This court's power to interfere with an order made by the Medical Council under s.26(1) of the Medical Registration Ordinance is "severely limited by the circumstances in which it can be invoked". See Libman v. General Medical Council supra p.220G-H, per Lord Hailsham LC. At p.221E-G, the Lord Chancellor elaborated:-

"In the result, although the jurisdiction conferred (on the court) by the (Ordinance) is unlimited, the circumstances in which it is exercised are such as to make it difficult for an appellant to displace a finding or order of (the Council) unless it can be shown that something was clearly wrong either (i) in the conduct of a trial or (ii) in the legal principles applied or (iii) unless it can be shown that the findings of a committee were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread. Or, of course, an appellant can rely cumulatively or in the alternative on any combination of the three."

11. This statement was applied in Hong Kong in Chow Wai Fu v. The Medical Council of Hong Kong (Civil Appeal No. 205/91) and Ng Mei Sin v. The Medical Council of Hong Kong (Civil Appeal No. 165/94) and Leung Kan Pui v. The Medical Council of Hong Kong (Civil Appeal No. 193/94).

12. Section 21(1) of the Medical Registration Ordinance enables the Medical Council to make, "in its discretion", a variety of orders, including an order removing the name of a registered medical practitioner from the register for a period of time as in this case. InPeatfield v. General Medical Council [1986]1 WLR 243 at p.251C-D, Lord Mackay LC had this to say:-

"The final point made by the doctor was that the sentence imposed was unduly severe and the doctor invited their Lordships to substitute either suspension or a direction that the doctor's registration should be conditional on his observance of conditions to be prescribed.

The question of the appropriate penalty to be imposed in respect of serious professional misconduct is a matter peculiarly within the discretion of the committee and interference would be justified only if it was plain that the sentencing imposed was inappropriate."

13. The Medial Council is a professional body. In consultation with the associations, it is the fountain-head of professional ethics. The primary duty of the Council is to maintain the good image of the profession and sustain public confidence in their integrity, probity and trustworthiness. Dishonesty is always a serious aspect which would deservedly attract a punitive element in a disciplinary order made by the Council. After all, "a profession's most valuable asset is its collective reputation and the confidence which that inspires". Bolton v. Law Society, [1994]1 WLR 512 at p.519A-B, per Lord Bingham M.R. Its profound knowledge of the medical profession is respected by all. The courts "must not substitute its own view on penalty for that of the professional tribunal". Bolton v. Law Society, supra. at p.520A-B.

14. The Medical Council is entrusted with the duty to monitor the proper decorum of medical practitioners in accordance with set criteria. It is constantly called upon to uphold the standards demanded of its own profession. Public confidence reposed on them need be jealously guarded. The Council is best qualified to decide on penalty for breaches of its professional code. By s.21(1) of the Medical Registration Ordinance, the legislature has chosen to leave this matter in the Council's discretion. "The Disciplinary Committee is the best possible people for weighing the seriousness of the professional misconduct". See In re a Solicitor, [1956]1 WLR 1312, per Lord Goddard, C.J. No one is better fitted than the Council to evaluate the extent of damage done to the medical profession. In principle, the courts should be "very slow" to interfere with the exercise of the Council's discretion in ordering a doctor's name to be removed from the register. It would require a "very strong case" to disturb a sentence passed by the Council. There is no rigid test, and "each case must depend entirely on its own circumstances". See Bolton v. Law Society, supra. P.516G-H; McCoan v. General Medical Council, [1964]1 WLR 1107 at p.1113.

15. It would be unproductive to dwell on the separate issues in the very clearly drawn case meticulously presented to the Council and eloquently rehearsed with detached fairness by Mr Harris before us. They were matters placed before and "taken into full consideration" by the Council. Everything that had to be said or could possibly be said had been said to the Council. We are told that except for a case before this court yesterday, in which the appellant virtually abandoned her appeal, a three-year suspension is the maximum penalty in the history of the Council's inquiries. But the order sought to be impugned has not been shown, in the circumstances of this case, to be less than a proper penalty to provoke any legitimate sense of grievance on account of disparity. Nothing before us suggests that the order made was so clearly out of tune with the circumstances placed before the Council as to indicate "with reasonable certainty that the evidence had been misread"; nor can I find any justification for condemning the Council's order as being plainly inappropriate. Of the other cases brought to our notice, none comes close to the protracted period of systematic frauds, involving such well placed medical groups, number of doctors or fictitious doctors and flow of funds as those in this case. These other decisions were also made on their own peculiar facts. Moreover, we are dealing with a sentence passed in late 1994. The deterrent effect of sanction does not remain static.

16. The advice proffered in the judgments delivered ex tempore in Ng Mei Sin, supra. and Leung Kan Pui, supra. embraced the guidelines emanated from the Judicial Committee of the Privy Council. They were not and were not intended to be departed from. It is these guidelines for the consideration of the orders of the Medical Council on appeal, particularly with a punitive element, that this court would be well advised to observe.

17. The conclusion the Council reached in this case is not one that is open to review. Without calling on Mr Bruce, we dismissed this appeal with an intimation that reasons would be given later, and that I now do. I would make an order nisi for costs against the appellant.

Bokhary, J.A.:

18. Primary responsibility for discipline in the medical profession rests with the Medical Council. In appeals to this Court against orders made by the Medical Council in disciplinary proceedings, that reality must always be borne in mind. So must the reason underlying it. And that reason is simply the Medical Council's unique qualification to undertake that responsibility.

19. What standards are required of medical practitioners? What is the likely impact on the profession and the public of any particular departure from those standards? In the aftermath of such a departure, what punishment is reasonably required to restore public confidence in the profession, to mark professional and public disapproval of the offending conduct, and to provide effective deterrence in future?

20. Those and other such questions are ones on which the Medical Council is best placed to provide the right answers from time to time and as times change.

21. Nevertheless, the Medical Council's findings and its awards of punishment are both subject to an appeal to this Court.

22. The balance is struck by our exercising that appellate jurisdiction in such a way as to uphold the Medical Council's primary responsibility while at the same time carrying out our own ultimate responsibility.

23. Thus, we do not reverse the Medical Council's findings unless:-

(i) it is clear that something had gone materially wrong in the conduct of the hearing; or

(ii) it is clear that some material error had been made as to the legal principles to be applied; or

(iii) it can be shown that the finding was sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misapprehended.

The foregoing was established by what Lord Hailsham LC said (particularly at p.221E-G) in delivering the advice of the Privy Council in Libman v. General Medical Council [1972] AC 217.

24. And as to the Medical Council's awards of punishment, this Court will only interfere if it is "plain that the sentence imposed was inappropriate". That was established by what Lord Mackay LC said (particularly at p.251C-E) in delivering the advice of the Privy Council in Peatfield v. General Medical Council [1986]1 WLR 243.

25. In the present case, what the appellant appeals against is the severity of the punishment which the Medical Council imposed upon him.

26. Such punishment was imposed on August 24 last year. It was that the appellant's name be removed from the register for a period of three years. And it was imposed for the single disciplinary charge which he faced and did not deny.

27. That charge was that on November 21, 1990, he had been convicted in the High Court on two counts of conspiracy to defraud.

28. Those were convictions after trial. The offences were serious ones. Passing sentence on November 22, 1990, Mr Justice Barnes imposed concurrent terms of two years' imprisonment on each count plus a fine of $3 million. He also ordered that the appellant pay one-third of the prosecution's taxed costs.

29. The appellant appealed against conviction and sentence.

30. On February 11, 1993, this Court upheld the convictions. As to sentence, the fine was reduced to $1 million. But the two-year terms were upheld. And so was the order as to costs.

31. In July last year, the Privy Council refused the appellant special leave to appeal.

32. As we have seen, the Medical Council's order now appealed against was made in the month following such refusal.

33. No matter how you analyse the case proved against the appellant, what he did was very serious indeed. And that can be illustrated simply by quoting how that case is summarised in the skeleton argument prepared by his own counsel:-

"a. In 1964 the Government set up the School Medical Services Board to administer a scheme, the object of which was to provide inexpensive but effective medical care and treatment for school children in the Territory.

b. Doctors wishing to participate made application to the Board for approval and, once approved, became eligible to be selected by schools wishing to take advantage of that doctor's services under the scheme.

c. Any pupil in the schools concerned qualified for care and treatment under the scheme by making a modest contribution of a few dollars (for our purposes $10). This fee was then remitted by the school to the Board after which the Board would then cause payment to be made to the participating doctor in the sum of $75 per pupil comprising the pupil's contribution together with an amount of $65 made available to the Board from public funds. The fee was paid to the doctor by way of monthly instalments in arrear to ensure that his obligations were fulfilled. That pupil then became entitled to free and unlimited medical care for a period of 12 months. The scheme was akin to a medical insurance policy.

d. A practice appears to have evolved over the years wherein participating doctors themselves paid or caused to be paid to the Board the pupil's qualifying contribution. This practice became known as "rebating" and was considered undesirable and outlawed by the Board by a resolution promulgated in June 1984.

e. In July 1985 the Board with effect from October 1985 introduced further constraints in relation to the administration of the scheme:

i. by limiting to 3,500 the number of pupils in any one year in respect of whose care and treatment any one participating doctor could be legitimately paid under the scheme; and

ii. by stipulating that payments by the Board could be made only to the participating doctor personally.

f. It is breaches of these "rules" which led to the Appellant's prosecution and subsequent conviction. The case against him was that with the knowledge and co-operation of the Secretary of the Board, the Appellant continued openly to "rebate" notwithstanding the Board's resolution that this practice should not continue. Further, that in the face of the Board's resolutions to the contrary, the Appellant used nominal doctors in order to disguise the fact that he had 'on his books' many more than the maximum number of 3,500 pupils allowed to each individual doctor and was being paid accordingly. The Appellant made use of the names of a number of doctors after any association with them had ceased and, without their knowledge or consent, operated bank accounts in their names into which payments under the scheme were made. It is accepted that in the period of the conspiracies charged the Appellant was paid more than he should have been under the scheme."

34. The appellant is a family man who has already suffered greatly for the crimes which he has committed. And it is no small matter to stop him from practicing medicine for three years. There is the impact on him and his family to consider. Also, it is always a serious matter to deprive the public of the services of a doctor. But there is no reason to think for one moment that the Medical Council would not know all of that as well as anybody else.

35. There are standards of honesty to be maintained. The Medical Council's award of punishment may be severe. But we cannot reduce it unless it is plain that it is inappropriate. I do not consider that to be the case.

36. I, too, would dismiss the appeal and make an order nisi for costs in the respondent's favour.

Nazareth, V.-P.:

37. The legal principles upon which this Court has to exercise its statutory power to intervene in the present context is well established. It suffices to refer to the following dicta of the Privy Council. Lord Hailsham LC in his advice in Libman v General Medical Council (P.C.) [1972] AC 217 said this at p. 221E-F:-

"... 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."

And in Peatfield v General Medical Council (P.C.) [1986] 1 WLR 243 at p. 251C-D, in dealing with a doctor's complaint of the severity of the sentence imposed by the General Medical Council Lord Mackay LC said:-

"The question of the appropriate penalty to be imposed in respect of serious professional misconduct is a matter peculiarly within the discretion of the committee and interference would be justified only if it was plain that the sentence imposed was inappropriate."

38. Clearly a heavy onus falls upon those who seek to disturb the findings or order of the Council. Mr G. Harris, for the appellant, was fully aware of that and sought to discharge the burden by reference to the following matters. He pointed first to the severity of the penalty of removal from the register for three years. Upon any standard that must be accepted as a severe penalty, even in terms of sentences in ordinary criminal cases. Moreover, it has had a severe effect upon the appellant and his immediately family including his elderly mother. Mr Harris emphasised and demonstrated from a schedule he produced of awards made by the Medical Council (the general accuracy of which was accepted by Mr Bruce for the respondent) that the award against the appellant was of the most severe level in recent times, bar one order. The latter was that the name of a medical practitioner be erased from the register. It was clearly exceptional; moreover, although an appeal was filed, it was abandoned on grounds apparently unconnected with its merits and in consequence dismissed by this Court on the day before the hearing of the present appeal. Mr Harris, rightly, did not submit that the range of awards disclosed by the schedule represented anything in the nature of sentencing guidelines or tariffs. What he submitted was that it provided some indication that the award here was out of tune or inappropriate.

39. Furthermore, he submitted, removal for three years was disproportionate to the gravity of the offences and unduly harsh in the circumstances, particularly the preceding period of 16 months imprisonment, which effectively included removal since the appellant could not practise. Its effect would be that the appellant would be barred from practice for nearly five years.

40. Insufficient regard, he said, was had to the term of imprisonment for 16 months that the appellant had served for the offences prior to the imposition of the removal order which, in effect, would result in an extension of the period of removal to almost five years.

41. It is not necessary to adumbrate Mr Harris's elaboration of his submissions. He did not suggest that there was anything wrong in the conduct of the disciplinary proceedings or in the principles applied. What he submitted was that the sentence of removal for three years was, in the light of the matters he referred to, out of tune with the allegations against the appellant and that it was plainly inappropriate. He did not suggest that in the light of the 16 months imprisonment, there should not be removal of the applicant's name from the register at all. But the period, he submitted, should have been of a wholly shorter order.

42. The question in this appeal thus comes down to this. Is removal for three years so extreme, so excessive that it is plainly inappropriate and out of tune with the evidence (which I apprehend to refer to the circumstances)? While this test may not necessarily admit of easy application in individual cases, it does not seem to me that the words "out of tune", "inappropriate" and "plain" are obscure. Nor does it seem to me that the matter would be assisted by attempting to explain or define them for this seems to encourage therefrom the extraction of unhelpful new and disparate nuances.

43. Turning to the evidence or circumstances, the offences were deliberate, organised and protracted in nature. They extended over four years and were unusually large in scale. Very large sums of public funds were involved, even if the profits to the appellant were only a fraction of those, as Mr Harris submitted. The damage in terms of the medical profession, the seriousness of the misconduct, the nature and effect of the mitigating circumstances and, indeed, the very question of the appropriate penalty were all matters that the Medical Council was peculiarly well placed to assess. Plainly, these were serious offences and plainly the Medical Council was entitled to impose a severe sentence.

44. The appellant totally failed to show that the award was inappropriate and out of tune with the evidence. Therefore, the appeal had to be dismissed.

45. I agree that there should be an order nisi that the respondent should have its costs. There will, accordingly, be an order to that effect.