LAI CHUNG LIM PETER v. THE MEDICAL COUNCIL OF HONG KONG

IN THE COURT OF APPEAL

1996, No. 10
(Civil)

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J U D G M E N T

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Godfrey, J.A. :

1. I have had the advantage of reading in draft the judgments of Mayo, J.A. and Ching, J.A. in favour of dismissing this appeal. This appeal must be dismissed accordingly.

2. However, I feel bound to say that I have misgivings about our doing so. The doctor was not charged with misconduct in a professional respect. Yet it seems clear from the Council's reasons for its order that it has punished the doctor as if he had been not only so charged but also found guilty. He has been disciplined by the Council for conduct, described by the Council as "culpable" and "dishonourable", in relation to the keeping of proper records relating to dangerous drugs. Such conduct, if proved, is obviously misconduct in a professional respect, and, if that was the sort of conduct of which the Council considered he was guilty, I think it should have charged him with it, and given him the opportunity to meet that charge. Instead, he was merely charged with having been convicted of an offence punishable with imprisonment, a charge which does not necessarily involve any accusation of misconduct in a professional respect. I consider that if a doctor is to be found guilty of dishonourable conduct, he should first be charged with it. I would for my part accept the submission made to us on behalf of the doctor that, in this connection, the Council fell into error.

3. I am also concerned by the fact that, as it seems to me, our decision to dismiss this appeal is out of tune with our decision in the similar case of Dr. Mao Chung Ting (Civil Appeal 182 of 1995), in which we allowed the doctor's appeal and suspended the Council's order for removal of the doctor's name from the register, a course which, for the reasons given in that case, I would for myself have taken in this one, as the doctor urged us to do.

4. I fear that until the Council comes round to the view that justice to members of the medical profession (as to anybody else) requires that, if a man is to be found guilty of an offence, he must first be charged with it (and not, or not solely, with some other offence) these appeals from the decisions of the Council will continue to plague this court. While the problem of dangerous drugs getting into the wrong hands is certainly a serious problem, and while this court has no desire to interfere with the proper exercise by the Council of its disciplinary powers or with its very wide discretion as to matters of sentence, the interests of justice must always be this court's first consideration.

Mayo, J.A.:

5. This is an appeal by a doctor against the penalty imposed upon him by the Medical Council at an enquiry held on December 14 last year. That penalty, as we see from the formal notice thereof to the doctor dated the 19th of that month, is that his name be removed from the medical register for a period of three months.

6. The doctor contends that that penalty is inappropriately severe. Any immediate removal of his name from the medical register would be, he contends, inappropriately severe in the circumstances.

7. If that is plainly so, the appeal must succeed. Otherwise, it must fail. As the Privy Council said in Peatfield v. General Medical Council [1986]1 WLR 243 at p251D:

"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 pain that the sentence imposed was inappropriate."

8. Removal of his name from the medical register for a period is one of the things which the Medical Council may order against a doctor who has been convicted of an offence punishable by imprisonment. That is provided by section 21 of the Medical Registration Ordinance, Cap 161, which lays down the disciplinary powers of the Medical Council.

9. This doctor has been convicted of an offence punishable by imprisonment. On April 26 last year, in the North Kowloon Magistrate's Court, he pleaded guilty to a charge of failing to keep proper records of dangerous drugs, contrary to paragraphs (1) and (7) of regulation 5 of the Dangerous Drugs Regulations, Cap 134.

10. As it happens, the Magistrate fined the doctor $10,000.00. But the maximum penalty for the offence is a fine of $50,000.00 and imprisonment for three years.

11. The doctor's offence was committed on September 6, 1994, at his clinic in Mongkok. On that date and at that place, he had a quantity of dangerous drugs for treatment of his patients. The records which he kept of those dangerous drugs failed to comply with regulation 5 aforesaid. They failed to do so in that they omitted: (i) the addresses of the suppliers; (ii) the addresses of the patients; and (iii) the remaining balance of the dangerous drugs.

12. The charge laid against the doctor by the Medical Council was that the doctor had been convicted of this offence. The doctor accepted that he had been so convicted and so accordingly all that remained was for counsel representing the doctor to place before the Council mitigation.

13. It appears to have been accepted that the doctor had kept some records even though they were not in conformity with the requirements of the regulations. It was also accepted that the drugs could be accounted for and that they had not come into the possession of any unauthorised person.

14. The Council also appears to have accepted that there were personal mitigating circumstances. The doctor had himself experienced some medical problems which had necessitated his absenting himself from his practice. It also is apparent that a suspension from practice may occasion the doctor some hardship in his particular circumstances.

15. It is necessary to consider how the Council dealt with this complaint and the view which was taken of this transgression.

16. In the Reasons given for the Order which was made the Chairman states:

"As Mortimer JA said in delivering his judgement in the case of Ng Mei Sin v. Medical Council:

The regulations not complied with by the [doctor] are important. Any breach of these 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.

The Council agrees with that statement. But in addition we would stress that the problem of drugs getting into the wrong hands is becoming an increasingly serious problem in Hong Kong as time passes. So that the importance of keeping proper records is also becoming more important and the breaches of those rules in turn more serious and culpable.

Against that background the Council has in three drugs register cases this year imposed sentences of removal from the register for a period of 3 months. The three cases are:

6 April Dr So Yiu Pu

11 July Dr Chow Chor-kuen, Peter

19 July Dr Mao Chun-ting

17. In imposing these sentences and in imposing a sentence of removal for 3 months on Dr Lai today, the Council believes that it is helping to meet the problem of wrongful handling of dangerous drugs by sending a clear message and a clear warning to doctors: this is not some technical offence; it is not just about getting the books wrong. The Council regards doctors who fail to keep proper records relating to dangerous drugs as dishonourable.

18. Medical practitioners are given the privilege to handle dangerous drugs in the course of their practices. This privilege carries with it certain serious obligations and duties - and one of them is to keep proper and accurate records.

19. This is not a case of inadvertence or carelessness on a single occasion, Dr Lai was handing large quantities of dangerous drugs and like the rest of the medical profession he knew what the rules were - and ignored them. And if he did not, then he was under a duty to find out. Sometimes it is said [that] the regulations were too difficult for doctors. The Hong Kong Medical Association has published advice on this subject on several occasions. We have heard that excuse too often and we do not accept it.

20. We were referred by Mr Thong to the sentence imposed on Dr Ng by the Court of Appeal of 3 months suspended for 1 year, which replaced the sentence of 3 years removal imposed by the Council. With respect to the Court of Appeal we think that the sentence they substituted was far too lenient. A suspended sentence of removal, although it should be regarded as a serious sentence and warning against future breaches of the rules, we believe it is too often seen as little more than a slap on the wrist.

21. The Medical Council is determined to send the clearest possible message to Dr Lai and to other doctors who are breaking these rules: you can normally expect to receive a period of suspension from practice if you are found to be in breach of the dangerous drugs regulations.

22. We have listened carefully to Mr Thong's plea in mitigation, but we find there are insufficient factors in this case to affect our decision to remove Dr Lai from practice for a short period."

Ground 1

23. The 1st ground of appeal is that the Council erred in holding that the doctor had been guilty of dishonourable conduct.

24. As is clear from the passage cited from the Reasons given by the Chairman the Council was of the opinion that the failure by a doctor to keep records in the prescribed form is a matter which is taken very seriously.

25. It was not a single or isolated case of non-compliance. In such a situation the Council was entitled to come to the conclusion that a breach of this nature may amount to professional misconduct. Whether the breach is described as professional misconduct or as dishonourable behaviour is not a matter of great significance. In this connection some assistance can be obtained from the definition of "misconduct in a professional respect" in the Code of Conduct for the Guidance of Registered Medical Practitioners.

" MEANING OF

'MISCONDUCT IN A PROFESSIONAL RESPECT'

The definition of 'misconduct in a professional respect' can be broadly defined as 'If a medical practitioner in the pursuit of his/her profession has done something which will be reasonably regarded as disgraceful, unethical or dishonourable by his/her professional colleagues of good repute and competency, then it is open to the Medical Council of Hong Kong, if that be shown, to say that he/she has been guilty of professional misconduct'.

The seriousness of misconduct will be judged by the rules, be they written or unwritten, of the profession itself."

26. It is of course true that the doctor was not charged with professional misconduct. However this ground of appeal cannot be sustained as in the light of the Guidance given to medical practitioners, it would appear that dishonourable conduct and professional misconduct are considered in much the same way.

Ground 2

27. This ground can be summarised as follows. That having regard to the mitigating circumstances referred to and the fact that the offence was not of the most serious nature the public interest did not require that the doctor should be suspended from practice.

28. The important point to bear in mind is that the Council is particularly well qualified to make a judgment upon what the public interest requires. It is manifest from the Reasons which have been given by the Chairman that the Council takes a very serious view of non-compliance with the requirements of the regulations and is fearful of the consequences of not being seen to take such a view.

29. It is perhaps helpful to add that but for the existence of the mitigating circumstances it is almost certain that a much more severe penalty would have been imposed. The Council was also anxious to dismiss any impression that non-compliance with the rules could be considered as a technical matter or that doctors might experience difficulty in complying with them.

30. We do not think that this ground can succeed.

Grounds 3, 4 and 5

31. These grounds can be summarised as a complaint that the penalty was unduly harsh and not justified by the evidence which was before the Council.

32. I accept the validity of the submission made by Mr Thong for the doctor that wide powers are reposed in the Court for reviewing the findings of domestic Tribunals. I do not however accept that the Court should interfere with any findings unless it can be demonstrated that the Tribunal has either been guilty of some procedural impropriety or has misunderstood any underlying legal principles. Alternatively it has to be shown that the decision of the tribunal is plainly wrong.

33. The approach which has been adopted by Mr Thong is to make a comparative analysis of the various cases concerning this disciplinary infraction and then to conclude that on the facts of the present case there should have been no immediate suspension from practice ordered.

34. With respect this is exactly the approach which should not be accepted by us. To do so would in effect mean that we would be usurping the function of the Council and substituting our own views for those of the Council.

35. What is clear is that the Council has carefully weighed and considered all of the relevant material. They have also applied correct legal principles in reaching the conclusion they have. It is certainly the case that it is impossible to convincingly contend that the Council were plainly wrong. This is the threshold which has to be met if this appeal is to succeed. It has not and so the appeal must be dismissed.

36. The fact that some or all of us may have taken a more lenient view of the matter having regard to the fairly strong mitigating factors is not a valid reason to justify our interfering with this decision.

37. Having regard to the frequency of these appeals I would observe that it would be helpful if the Council found itself able to provide greater particularity of the mischief which arises if the regulations are not strictly complied with. I have in mind the practical application of the regulations.

38. An order nisi is made that the Council will have their costs.

Ching, J.A. :

39. I agree that this appeal must be dismissed. I add some brief views.

40. The right of a medical practitioner in Hong Kong to practise his profession depends upon registration, absent exemption, under the Medical Registration Ordinance, Cap.161. The power of the Medical Council to regulate the profession is to be found in section 21 of that Ordinance. For the purposes of this appeal, section 21(1) provides that,

"If, after due enquiry into any case referred to it by the Preliminary Investigation Committee in accordance with regulations made under section 33, the Council is satisfied that any registered medical practitioner -

(a) has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment;

(b) has been guilty of misconduct in any professional respect;

(c) .....

(d) .....

the Council may, in its discretion -

(i) .....

(ii) order the name of the registered medical practitioner to be removed from the register for such period as it may think fit; or

(iii) .....

(iv) make any such order as aforesaid but suspend the application thereof, subject to such conditions as the Council may think fit, for a period, or periods in the aggregate, not exceeding 2 years; or

(v) ....."

The Appellant fell to be dealt with under subparagraph (a). He was charged with and pleaded guilty to an offence under Regulation 5(1) of the Dangerous Drugs Regulations, Cap.134, in that on 6th September, 1994, he failed to keep a proper record of dangerous drugs. By Regulation 5(7) the offence is punishable with a fine of $50,000 and imprisonment for three years. He was fined $10,000.

41. The Medical Council exercising its powers under section 21(1) subparagraphs (ii) and (iv) ordered that the Appellant's name be removed from the register for a period of three months without ordering that that removal should be suspended for any period. That forms the basis of the Appellant's complaint. In essence the Appellant complains that if he should have been disciplined at all his name should not have been removed from the register and, if removed, the removal should have been suspended.

42. For some considerable time the Medical Council has been taking an increasingly strong view of medical practitioners who fail to keep proper records of their dangerous drugs. So far, the Medical Council has contented itself with declarations as to how seriously they regard the failure to do so without articulating their reasons. It is, however, not difficult to understand why they take a serious view. Medical practitioners are usually given the right or the privilege of having in their possession drugs which the legislature has seen fit to describe as being dangerous. That right or privilege brings with it corresponding obligations. As an example only, such drugs can go astray by being pilfered or otherwise. At an extreme, a doctor may be misusing the drugs in one way or another. The Medical Council is properly concerned with the conduct of medical practitioners and the possible misuse of the drugs. It has no means of policing medical practitioners from day to day. That must be left to the police with the assistance of the Department of Health. Even those authorities cannot, and should not be expected to, police from day to day the activities of an honourable profession. They must content themselves with spot checks from time to time. Those checks must entail the task, often tedious, of a physical count of the drugs. It should thereafter be possible for a cross-check to be made with records which should be immediately available in a complete form. Regulation 5 of the Dangerous Drugs Regulations, Cap.134, provides for the keeping of the register in the form set out in the First Schedule. It is a simple form which can be filled in as a clerical exercise whenever drugs are received or dispensed. There is nothing complicated about it. To my mind it is generally neither a mitigating factor nor a defence to say that all of the information as to drugs received can be found from the suppliers' invoices or that all of the information as to drugs dispensed can be discovered from the patients' records. Given the many thousands of patients which a medical practitioner may have it would take the authorities an enormous amount of time to check through records such as those. That should not be a task which they have to perform. The task is put squarely on the medical practitioner conducting his practice in the proper manner. Having said all of that, I am in agreement with Mayo, J.A., in expressing the observation that it would be helpful if the Medical Council were to make known its reasons why the offence is regarded by it as being of such gravity.

43. In imposing the sentence that it did, the Medical Council said,

"The Council regards doctors who fail to keep proper records relating to dangerous drugs as dishonourable."

It would not be helpful to consider whether this meant that it was the doctor himself or his failure to keep the records that was dishonourable. The word was seized upon in argument before us as the basis of an argument that there was therefore a finding of disgraceful and shameful conduct. I do not read the word as going so far. I read it as meaning that the Appellant has behaved in such a way as to bring dishonour to his profession. The Medical Council were fully justified in finding that. It would be intolerable for the profession if the public were to think that medical practitioners who are in control of large amounts of dangerous drugs were not required to keep proper and reasonably immediate records of them.

44. It will be seen from an examination of section 21(1) that there are separate subparagraphs dealing with disciplinary proceedings based upon a relevant conviction and those based upon misconduct in any professional respect. In my view there is a necessary overlap between these two categories for the conviction may arise from a matter which amounts also to misconduct in a professional respect. It seems to me that failure to keep proper records of dangerous drugs is misconduct and, that misconduct having occurred in the course of practice, it is misconduct in a professional respect. However that may be, the Medical Council did not in the present case find the Appellant guilty of misconduct in a professional respect. It imposed their sentence on the charges as admitted and upon the circumstances as they appeared to it, including their regard of "doctors who fail to keep proper records relating to dangerous drugs as dishonourable".

45. Save insofar as may appear from the foregoing, I am in agreement with Mayo, J.A., as to the reasons for dismissing this appeal. I need only add that it is a matter of regret that the Medical Council discounted the decision of another division of this Court in the case of Ng Mei Sin v. Medical Council (1995) 1 HKC 242. In the end, however, that is immaterial to the result of this appeal.