DR. IP KAY LO VINCENT v. THE MEDICAL COUNCIL OF HONG KONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 41
(Civil)

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J U D G M E N T

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Leong, J.A. :

The Charges

1. On 14.8.1996, the Medical Council gave notice to the appellant Dr. Ip Kay Lo Vincent that in consequence of a complaint made against him to the Council, an inquiry would be held against him into two charges of professional misconduct. These two charges are stated in the Notice of Inquiry as follows:

The Background

2. The back ground of this case is this:

At the material time, Dr. Ip was a general medical practitioner in Hong Kong. In the course of his practice, he provided services to members of the Hong Kong Federation of Trade Unions and the Hong Kong Shipping Staff Association. The Association's chairman, Mr. Lau, considered that a cash-user-pay-cost health scheme would improve the medical service provided for his members and he discussed this with Dr. Ip. Dr. Ip's wife was a director of a company called Health Care Promoting Ltd trading under the name of " Choice and Care". He told his wife about Mr. Lau's scheme and a contract was signed by the Hong Kong Shipping Staff Association with "Choice and Care" to provide medical service to the members as Mr. Lau proposed. The scheme was later presented to the Federation of Hong Kong Unions which apparently accepted it. Mr. Lau then thought it would be better if Government could take over the management of the scheme and he prompted Dr. Ip to present it to the Government. As a result, Dr. Ip wrote to the Governor on 17 January 1994 and 13 February 1995. Mr. Bobby Chan replied on behalf of Government on 6 February, 95 stating that whilst Government saw some merits in the scheme, it would be inappropriate for Government to be involved in promoting a such a medical scheme for a private enterprise. Dr. Ip wrote again urging Government to consider the proposal.

3. On 8 March 1995, Mr. Chan wrote to Dr. Ip that the scheme might have an impact of reducing public healthcare costs and asked Dr. Ip to provide more information of the subscribers to the scheme. In the meantime, a promotional letter from "Choice and Care" was sent to doctors in Hong Kong together with the two letters on Government's view of the scheme from Mr. Chan to Dr. Ip. Mr. Chan was disturbed that Dr. Ip had used the two letters in this manner and in a letter dated 3 May 1995 he told Dr. Ip that the use of the two letters was without his consent and he contemplated filing a complaint against Dr. Ip. In this letter he further repeated Government's position of non involvement in the scheme. On 13 May 95 the Medical Council wrote to Government expressing concern that the "Choice and Care" promotional letter would suggest Government involvement in direct commercial undertaking in relation to professional services. In the same letter the Medical Council stated that there were elements of fee splitting in the scheme. On 18 May 95, Mr. Chan confirmed to the Medical Council that Government has no intention to publicly endorse the Plans as stipulated in the 'Choice and Care' soliciting letter. But he said he saw no objection in principle to any plans which involved fee splitting, etc. so long as they were properly run and enabled the public to enjoy better medical service. On 2 December 1995, Dr. Ip wrote to Mr. Chan again regarding the scheme enclosing two letters - a copy of a letter from the Hong Kong Federation of Trade Unions dated 29 September 1995 and a copy of a letter dated 18 October 1995 from the Medical Council, the caption, name and address of its addressee had been blocked out. In the letter dated 29 September 95, the Federation informed the Medical Council that the scheme was one of the services provided by the Unions to members and explained how the scheme worked. In the letter dated 18 October 95, the Medical Council informed the addressee, presumably a medical practitioner, that the Preliminary Investigation Committee of the Medical Council had considered the complaint against the addressee and had decided that no further proceedings would be taken. What complaint it was against the addressee and the background giving rise to the complaint cannot be made out from this letter. In the letter of 2 December, 1995, Dr. Ip told Mr. Chan this:

4. Because of the complaint on the use of the two letters dated 6 February 1994 and 8 March 1998 from Mr. Chan and Dr. Ip's letter of 2 December 1995 to Mr. Chan enclosing copies of the letters from the Hong Kong Federation of Trade Union and the Medical Council, the two charges of professional misconduct were preferred against Dr. Ip.

The Inquiry

5. The inquiry was held on 9 and 11 January 1997. At the end of the hearing the Medical Council announced that only charge (II) had been established. On 16 January, 1998, the decision of the Council and the order that Dr. Ip's name be removed from the General Register for three months was conveyed to Dr. Ip in writing.

6. At the hearing, it was not disputed that Dr. Ip had sent the letter dated 2 December 1995 to Mr. Chan and that Mr. Chan found enclosed with it copies of the two letters of the 29 September 95 and 18 October 95. It was also agreed that the Secretary of the Medical Council did not consent to this letter being sent to Mr. Chan.

7. The prosecution relied on these letters to prove their case on charge (II).

8. Dr. Ip's case was that whilst he agreed he sent out the letter dated 2 December 1995, the copy of the letter from the Medical Council was enclosed by his nurse without his knowledge. His nurse gave evidence that she found the copy of letter outside the jacket which contained Dr. Ip's letter in an envelope and thinking that it had dropped out from the envelope, she put it back. Dr. Ip's case was also that the enclosure would not have misled anyone to conclude as alleged in paragraph (4) of charge (II).

The Appeal

9. In this appeal, Dr. Ip seeks to set aside the decision of the Council on this charge. There are a number of grounds in the amended notice of appeal but the principal ground seems to be in ground 6 which contains a number of complaints.

Irregularities of proceedings

10. The first is material irregularities of proceedings. It is complained that the legal officer not only did not open the prosecution case at the commencement of the inquiry but also refused to state unequivocally whether it was the prosecution case that all the particulars in paragraphs (1) to (4) of Charge (II) had to be proved and if not what was the prosecution case. He only told the Council that it was for it on finding all or some of the particulars were proved, to decide whether that would amount to professional misconduct.

11. Mr. McCoy SC counsel for Dr. Ip, referred to the proposition in following passage in the judgment of Lord Hewart C.J. in R v Bailey [1924] 2 KB 300:

12. He also referred to the Australian case of Johnson v Miller [1937] 59 CLR 467 where it was held that the defendant should be given "a reasonably clear and intelligible statement of the offence or matter with which he is charged" and if not, the defendant would be prejudiced. Based on these propositions, Mr. McCoy submits that it is a matter of fairness and natural justice that Dr. Ip as the defendant should know the precise case against him and the legal officer was obliged to identity it to Dr Ip. It is not right to leave it in the hands of the Council to decide.

13. Complaint is also made that the legal officer in his final address to the Council, introduced an allegation which was never included in the particulars. The relevant passage (at p.210 of the transcript) reads as follows:

14. It is submitted that by introducing this allegation at that stage of the proceedings, the prosecution had deprived Dr. Ip of a fair chance to defend that issue. Having regard to such conduct of the legal officer, the way the prosecution proceeded fell far short of the acceptable standard of a fair prosecution of a disciplinary offence.

15. Mr. Dykes SC for the respondent refers to the Medical Practitioners (Registration and Disciplinary Procedure) Regulations which governed the proceedings at the hearing of the Council. He points out that these regulations do not require the legal officer to open the case to the Council. The regulations only require the Secretary to read the notice of inquiry at the opening of an inquiry and if there is no legal objection on points of law, "the Secretary of the Council will present the case against the defendant and adduce evidence in support thereof and shall close the case against the defendant" (Regulations 20, 21 and 22) Then the Council is obliged to consider the case in two steps, first to consider and decide if the facts alleged have been proved and second whether the defendant is guilty of the offence alleged (Regulation 23). These two steps must be carried out in the same exercise, unlike the practice of the General Medical Council in England. He submits that the legal officer had acted according to the regulations and put before the Council all the evidence relevant to the particulars of the charge and had indicated to the Council that the essence of the charge is "dishonesty" in that Dr. Ip manipulated correspondence to give a false impression. The prosecution case was thus clear. Whether that amounts to professional misconduct is a matter for the Council which is the body to judge the conduct of medical practitioners.

16. Mr. Dykes further argues that the nature of a disciplinary inquiry before the Medical Council is different from an ordinary criminal prosecution where what amounts to a particular offence is defined by law. At an inquiry, the Council is to inquire into matters put forward by the Preliminary Investigation Committee and the ambit of professional misconduct is not defined. It is for the Council on being satisfied that the matters are proved to decide whether there is any professional misconduct. He contends that the legal officer was not obliged to open the prosecution case and was entitled to proceed as he did at the hearing.

17. In my view, the particulars of the allegations in Charge (II) are clearly set out in paragraphs (1) to (4). These are the matters which the Council was to inquire into in respect of Charge (II) and of which notice had been given to Dr. Ip. That was the case presented to the Council at the opening of the inquiry. The Council was to decide on the evidence before it whether these particulars are proved and make a finding of fact and on that finding to conclude whether there was any professional misconduct on the part of Dr. Ip. There could be no question of Dr. Ip not being clear as to what precisely was the case he had to meet. This is demonstrated by Dr. Ip agreeing to some of the allegations by way of the statement of agreed facts and by the way in which Dr. Ip presented his case. In R v Bailey, the indictment contained 19 counts brought together against the defendant and Johnson v Miller concerns complaints lacking in particulars. They can be distinguished from the present case where the allegations are particularised and are clear and simple. Nevertheless, it is desirable that in a case where there are complex issues to be considered and decided by the Council, the legal officer should state clearly at the opening of the inquiry what the case against the defendant is and how that is to be proved, so that the defendant knows whether, out of the multiple issues, some or all of them are relied upon by the legal officer, eventhough an inquiry is not a criminal prosecution and there is no statutory requirement on the legal officer in this respect.

18. The introduction by the legal officer into his final address an allegation that Dr. Ip sent those letters to promote Choice and Care, which was not in the particulars and the doctor was never aware of and thus not in a position to refute at that late stage of the proceedings, is undoubtedly prejudicial to the doctor in the inquiry. Though the legal officer was careful to state that this was not one of the matters the Council was required to decide upon, having regard to the back ground of this case and the evidence adduced, it cannot be said the Council would not have been influenced by it to find Dr. Ip guilty of professional misconduct. If it were indeed the prosecution case that Dr. Ip was promoting Choice and Care and that might constitute professional misconduct, this should have been included in the allegations against Dr. Ip. The way the matter had been brought into the proceeding is prejudicial and irregular.

19. In Dr. Mu Lie Lian v Medical Council of Hong Kong [1994]3 HKC 8 at p.13 Litton JA (as he then was) had this to say in respect of the duty of the legal adviser:

20. Timely advice by the Legal Adviser might have rectified such irregularities. It is unfortunate that nothing had been done by the Legal Adviser. The conduct of the inquiry is unsatisfactory.

Whether reasons for decision should be given

21. The more serious complaint by Mr. McCoy is the Council made no finding of fact nor gave reasons for its decision. Mr. McCoy refers to the ancient case of Re Chan Kum Chuen [1910] 5 HKLR 182 which was considered in Lau Tak Pui v Immigration Tribunal [1992] 1 HKLR 374 for the proposition that the Council is obliged as a matter of fairness to provide sufficient "outline" reasons indicating the issues to which it directed itself and the evidence upon which it based its conclusions and a bare statement of the conclusion is insufficient. He also relies on Fu Ning Dispensary v Pharmacy and Poisons Board [1995] 3 HKC 947 and Tong Po Wah v Hong Kong Society of Accountants [1098] 3 HKC 82 for support to the proposition that even in certain disciplinary proceedings, there is a need to give reasons for decision and failure to do so would set aside the decision. He submits that in the letter of 16 January 1995, the Council's was no more than stating the conclusion. This was not a finding of fact or reasons for decision which would enable a person to know why he won and why he lost.

22. Mr. Dykes on the other hand argues that there is no statutory requirement for the Council to give reasons. The Council had announced the facts alleged against Dr. Ip in paragraphs (1) to (4) of Charge (II) had been proved and these findings entailed a rejection of Dr. Ip's version of facts. The Council had also announced that based on such findings of fact, Dr. Ip was found guilty of professional misconduct.

23. Mr. McCoy then turned to the fact that the legal officer at the end of the hearing announced in public that she had advised the Council that there was no evidence to prove paragraph (2) of Charge (II) i.e. the letter from the Council to "Dr. H" was totally unconnected with Dr. Ip or the scheme run by "Choice and Care". But the Council went against that advice to announce its decision that it found all the particulars proved. Mr. McCoy submits that whether there is evidence to support a particular of the charge is a question of law and the Council should not have disregarded this advice. He submits that since there are no reasons for decision, it is not known on what evidence the Council found the particular alleged in paragraph (2) proved.

24. Mr. Dykes points out that the duties of the legal adviser in an inquiry are provided in Regulation 33, the relevant part of which is as follows:

25. He submits that whether paragraph (2) of Charge (II) had been proved is a question of fact for the Council and the Council was entitled to make such a finding on the evidence before it.

26. In my judgement, the Legal Adviser gave her advice during deliberation of the Council. If the Council had rejected the advice, it would have informed the parties which it was obliged to do under regulation 33(2). The Council had not done so and it must be taken to have accepted the advice. On the basis of that advice, the Council could not have made a finding that paragraph (2) had been proved since there was no evidence to support such a finding. The Council had not given any other reason for such finding of fact since no reason had been given. That being so this finding must be regarded as perverse and cannot stand.

27. As to the whether reasons should be given for the Council's decision, there is a line of Hong Kong authorities in this regard (Lau Tak Pui and others v Immigration Tribuna [1992]1 HKLR 374; Fu Ning Dispensary v Pharmacy and Poisons Board [1995]3 HKC 347; Oriental Daily Publisher Ltd v Commissioner for TELA [1997]3 HKC 93; Tong Pon Wah v HK Society of Accounts [1998] 3 HKC 82). The established principle seems to be that generally under Common Law there is no obligation imposed on tribunals to give reasons on administrative decisions but where the statute expressly provides for reasons to be given, it is a duty that reasons should be given. Otherwise, where the circumstances of the case require, there is an implied duty to give reasons. As Chan CJHC said in Oriental Daily Publisher Ltd v Commissioner for TELA:

28. In the Tong Pon Wah case, Liu JA put the proposition regarding reasons for decision in disciplinary proceedings in the Medical Council this way:

Later in his judgement, he said (at p99)

29. What has been said by Liu JA aptly applies to the present case. Although the Council had no obligation to give reasons for decision, the circumstances of this case make it necessary. The facts of the case are simple but the way in which it was prosecuted and the way in which the Council reached their findings of fact cried for a reasoned decision without which an appeal would be difficult.

Conclusion

30. The Council had not acted fairly in the inquiry and had reached a decision they were not entitled to reach on the evidence.

31. For the above reasons, the decision of the Council cannot be supported and the appeal must be allowed. The decision is set aside.

Rogers, J.A. :

32. I agree with the judgment of Leong, J.A. and the reasons given therefor. I wish however to add a few words of my own, firstly, because we are differing from the order of the Medical Council which we do with caution, having particular regard to the specialist nature of that Tribunal. In the second place the point raised on this Appeal is of some importance.

33. The matter which particularly concerns this appeal is what facts the Council found proved. The second charge included an allegation that the doctor had sent Mr. Bobby Chan a letter which enclosed copies of two letters. One of those two letters was dated 18th October 1995 from the Secretary of the Medical Council to an addressee whose name and address were blocked out. The second paragraph of that charge stated that the Medical Council's letter referred to a disciplinary case against a registered medical practitioner which was totally unconnected with either the doctor or the Health Security Plan run by "Choice and Care".

34. As has already been stated, the Legal Adviser gave advice to the Council that there was no evidence that this letter was unconnected with the Health Security Plan run by Choice and Care.

35. As has also been pointed out in reaching their conclusion, the Chairman "..... the Council is satisfied that the Charge 2 has been proved and that Dr. Ip is guilty of misconduct in a professional respect."

36. That, on its face, is a finding of fact. As has been pointed out, the Chairman did not indicate that the Council did not accept the advice of the Legal Adviser and in those circumstances, the conclusion must be that the Council reached a finding of fact which in law was erroneous. For that reason, the appeal must be allowed and the decision set aside.

37. I would add however that, in theory at least, it might have been open to the Medical Council to take a different course. For example, if the Medical Council did not accept the advice of the Legal Adviser, it could have made that clear. In my view, however, if it were to have done so, it would almost certainly have had to give reasons for not accepting the Legal Adviser's advice.

38. Looking at the matter from a different view point, it might have been open to the Medical Council to have found some of the facts proved and to have held that the doctor were guilty of professional misconduct. Should the Medical Council have wished to have taken that course, it would have been necessary in this case for them to have identified, with precision, those facts which it found proved upon which it might have based its finding of misconduct. The difficulty with regard to this matter was highlighted by Counsel for the doctor at the hearing before the Medical Council where over a prolonged discussion, he requested that Counsel for the Secretary should identify his position as to which of the particulars could found a charge of misconduct. He was continuously rebuffed in this and finally the Chairman said :-

39. As a matter of procedure, that might be correct if, but only if, the Medical Council made clear precisely the facts upon which it based its findings.

40. In this regard, Lord Hailsham's speech in Libman v. General Medical Council [1972] 1 All ER 798 is pertinent. In a well-known passage, he set out the general propositions which emerged from the cases with regard to appeals from the Medical Council. I would emphasise that in referring to proposition no. 3, frequently sight is lost of the opening words which are as follows :-

41. The reference to the bare statement of findings of fact is important. In the quarter of a century which has passed since that decision, there has been, as has been observed in other cases perhaps, a gradual move to the requirement of reasons. The requirement however is never onerous. During the course of the argument in this case, there was discussion as to whether the facts and reasons could in some circumstances be the same. The position is, in my view, neatly encompassed by Lord Lane, C.J. in R. v. Immigration Appeal Tribunal, ex p. Khan (Mahmud) [1983] QB 790 at 794-5 :-

42. I would also draw attention to the decision of this Court in Lau Tak-pui and others v. Immigration Tribunal (1992) 1 HKLR 374 especially the judgment of Kempster, J.A. at pp.378-380 in which this passage was considered and approved.

43. I would only add that it is a counsel of prudence for a tribunal not to assume too readily that the issues being addressed by it are obvious or that the facts upon which it is basing its opinion are obvious. The setting out of the basic facts and the giving of reasons need take no more than a few short sentences.

Mayo, J.A. :

44. I agree with the judgments of Leong, J.A. and Rogers, J.A. There is nothing that I can usefully add. The appeal is therefore allowed. We make an Order Nisi that the Appellant is to have his costs.