DR. LAI KING SHING v. THE MEDICAL COUNCIL OF HONG KONG

HEADNOTE

[The standard of proof in disciplinary proceedings must be commensurate to the gravity of the complaint. The standard of proof commensurate to the gravity of a complaint of indecent assault by a doctor on his patient is proof to a degree of probability which falls short of proof beyond reasonable doubt by so small a margin as makes no practical difference.]

IN THE COURT OF APPEAL

No. 95 of 1995
(Civil)

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(On appeal from the order of the Medical Council
of Hong Kong dated 20th March 1995)

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J U D G M E N T

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Keith, J. (giving the first judgment at the invitation of Nazareth V.-P.):

Introduction

1. On 10th March 1995, the Appellant, Dr. Lai King Shing, was found guilty of professional misconduct by the Medical Council ("the Council"). His name was ordered to be removed from the medical register for a period of six months, but the application of that order was suspended for a period of one year, subject to Dr. Lai not being found guilty of professional misconduct during that period.

The complaint

2. The complaint being made against Dr. Lai was that on 19th February 1993, he had prescribed medication for one of his female patients. Two days later, she came to his clinic complaining of dizziness. In the course of examining her on that day, and in order to feel her heartbeat, Dr. Lai put his hand underneath her brassiere. He then commented that her nipples were longer than normal, and that he did not like the colour round her right nipple. He also made a circular movement round her nipples with his hand. He then told her to take off her trousers and knickers, and he stimulated the outer part of her vagina with his naked hand. He used a torch to check if her hymen was intact, and he asked her whether she had ever had sex with a man. It was not disputed that if those facts had been properly established, Dr. Lai would have been guilty of professional misconduct. The question which the Council had to decide was whether those facts had been established. Dr. Lai now appeals against the finding that they had been.

The advice on the standard of proof

3. One of the grounds of appeal relied upon by Dr. Lai relates to the standard of proof which the Council was advised to apply. Before the Chairman of the Council announced the Council's findings, the Council's legal adviser stated the advice which he had given the Council about the standard of proof. What he said was this :

"As far as the standard of proof issue is concerned, I said words to this effect: that in cases of indecency, a high standard of proof is required. Even in professional cases where fraud is alleged, that standard of proof has to be beyond reasonable doubt. But this is not a case of fraud so the burden of proof or standard proof is not as high as that. I said that the words I would use is that the Council has to be satisfied of the truth of the Complainant's evidence that the allegations are proved."

It is argued that this advice was confusing and wrong in law.

Was the advice confusing?

4. I do not think that the reference to the standard of proof in professional cases where fraud is alleged was particularly helpful. Since this was not a case of fraud, why muddy the waters with a reference to what the standard of proof in such a case was? However, in defence of the legal adviser, it may be that he thought that he ought to mention the standard of proof in a professional case in which fraud was alleged, because that was something which the legal officer to the Inquiry had mentioned in her closing speech.

5. However, despite the unnecessary reference to the standard of proof in professional cases where fraud is alleged, I for my part do not regard the advice as to the standard of proof which the Council had to apply in the current case as in any way confusing. In my view, the advice given was clear and unambiguous: although the Council did not have to be satisfied about Dr. Lai's guilt beyond a reasonable doubt, a high standard of proof that the complainant's evidence was true was required.

Was the advice wrong in law?

6. The authorities on the standard of proof in disciplinary proceedings have not spoken with one voice in the past, but all the relevant recent authorities were considered as recently as last month by this Court in Tse Lo Hong v. The Attorney-General [1995] 3 HKC 1. That was an appeal which concerned disciplinary proceedings against a police officer. The judgment of Bokhary J.A. reviewed the authorities comprehensively at pp. 14D-15D. In particular, he referred to the decision of this Court in Attorney-General v. Tsui Kwok Leung [1991] 1 HKLR 36, which has traditionally been regarded as authority for the proposition that whatever may be the standard of proof required in disciplinary proceedings, it falls short of satisfaction beyond all reasonable doubt.

7. Against that background, Litton V.-P. said at p. 13D :

"The standard of proof must be commensurate with the gravity of the charge."

As for Bokhary J.A. himself, his view, when properly analysed, was the same as that of Litton V.-P. He said at p. 15D :

"... where the events giving rise to such a disciplinary charge would also found serious criminal charges, then it may be appropriate to apply [the criminal] standard [of proof]."

However, when he came to consider the standard of proof which had in fact been applied by the adjudicating officer in that case, he said at p. 16F that the adjudicating officer had not applied "a standard of proof commensurate with the gravity of the case".

8. I agree entirely with this approach. It has the inestimable advantage of flexibility, and does not tie the hands of the disciplinary tribunal to a particular standard of proof, whatever the nature of the allegations and whatever the consequences for the person facing the disciplinary action. The more serious the complaint, and the more dire its consequences, the greater the degree of proof required to prove it, even though the degree of proof required falls short of proof beyond reasonable doubt.

9. The critical issue, therefore, is: what is the standard of proof commensurate to the gravity of a complaint of indecent assault by a doctor on his patient? In Tse Lo Hong, Godfrey J.A. thought that only proof beyond reasonable doubt would be commensurate to the gravity of a charge which, if proved, was likely to result in a police officer being dismissed from the force. For my part, I am not convinced that the position of doctor and police officer is entirely analogous. But I bear in mind that the allegation being made against Dr. Lai amounted to the criminal offence of indecent assault which was punishable by imprisonment. If proved, it would have struck a devastating blow on his practice, destroying as it would have done the confidence which his female patients would otherwise have placed in him. And it would have been likely to result in Dr. Lai's name being removed from the medical register for a not insignificant period. In my judgment, the standard of proof commensurate to the gravity of such a charge was, if not proof beyond reasonable doubt, proof to a degree of probability which fell short of proof beyond reasonable doubt by so small a margin as made no practical difference.

10. It follows that, in my view, the advice which the Council received on the standard of proof required to find Dr. Lai guilty of the particular type of professional misconduct alleged against him was wrong in law. That was because the legal adviser advised the Council that proof beyond reasonable doubt was not required, whereas the proof which was required fell short of proof beyond reasonable doubt by so small a margin as to make no practical difference. This was not a case in which, despite the advice given by the legal adviser, the language used by the Chairman of the Council when she announced the Council's findings showed that the Council had nevertheless determined the complaint on the basis of the proper standard of proof.

Conclusion

11. Accordingly, in my view, the finding of guilt cannot stand. I would order that the appeal be allowed, and that the finding of professional misconduct be set aside. I would leave it to the Council to decide whether Dr. Lai should be subjected to a fresh disciplinary hearing of the complaint made against him.

12. There are three final matters I want to mention :

(1) In defence of the legal adviser, it should be said, I think, that the law on the standard of proof in disciplinary proceedings is in a state of transition. I have already referred to the fact that the authorities do not speak with one voice; and the case of Tse Lo Hong had not, of course, been heard when the legal adviser was called upon to give his advice.

(2) One of Dr. Lai's grounds of appeal related to the five months' delay between the first and second days of the hearing before the Council. In the light of the view I have taken on the standard of proof, it is not necessary for me to decide whether this lapse of time had a significant impact on the fairness of the proceedings, but I take the opportunity to express the hope that systems can be devised to ensure that a delay of this kind does not happen again. I appreciate, of course, that members of the Council are extremely busy people, and the time which they give to disciplinary proceedings can be very substantial. I recognise, too, that the professional commitments of the lawyers involved must be taken into account as well. But lengthy intervals between hearings are not ideal, and if they can be avoided, they should be.

(3) In the light of the view I have taken on the standard of proof, I do not propose to address any of the other grounds of appeal. It is not merely unnecessary to do so. It would be wrong to do so in case the Council decides that a fresh disciplinary hearing to consider the complaint against Dr. Lai should take place. In that eventuality, the less said now about the merits of the other grounds of appeal, the better.

Liu, J.A.:

13. I agree. I only wish to add in relation to the advice given to the Medical Council, which is erroneous, the following: The standard of proof before the Medical Council for the charge against the doctor involving events which would, in my view, also found a serious criminal charge of indecent assault, particularly when it was allegedly committed in the performance of his duty as a medical practitioner, is one "applicable to a criminal trial".

Nazareth V.-P.:

14. I also agree.

15. The advice given by the legal adviser albeit given in all conscientiousness in the context of the somewhat inconsistent legal authorities available at that time was misleading, framed in the way it was, and could only have confused the Council.