DR. IP WING KIN v.THE MEDICAL COUNCIL OF HONG KONG

CACV 226/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 226 OF 2009

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL

OF HONG KONG MADE ON 28^TH AUGUST 2009)

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BETWEEN

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J U D G M E N T

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Hon Le Pichon JA:

1.  This was an appeal by the appellant from a decision of the Medical Council of Hong Kong (“the Council”) of 28 August 2009. The Council found the appellant guilty of misconduct in a professional respect in that on 20 February 2006, the appellant, being a registered medical practitioner, charged the patient excessively for the laboratory tests conducted for sexually transmitted diseases (“charge (iii)”). At the conclusion of the hearing judgment was reserved which we now give.

Background

2.  The appellant is a registered medical practitioner and a specialist in dermatology and venereology.

3.  On 19 February 2006, the patient was diagnosed to have herpes zoster, also known as shingles, a viral infection related to chickenpox by a doctor at the United Christian Hospital. The patient, an elderly man of some 79 years, consulted the appellant at his clinic the following day accompanied by his daughter and daughter-in-law. Unbeknown to the patient, the appellant secretly taped the consultation of 20 February and subsequent consultations all of which were conducted in Chinese. The ‘unauthorised tapes’ and translated transcripts of the consultations were produced by the appellant’s former senior counsel in the course of the inquiry.

4.  It emerged towards the end of the hearing that there appeared to be some doubt as to the status of the translated transcripts and whether the transcript of the consultation held on 20 February 2006 (“the consultation transcript”) formed part of the evidence for the purpose of charge (iii). Such extracts of the transcript of the hearing below as were in the appeal bundle did not shed light on the issue. Pursuant to the court’s directions, relevant extracts from the transcript of the proceedings have been produced, clarifying the matter. It is now common ground that the consultation transcript (as indeed the transcripts for the subsequent consultations) formed part of the evidence below.

5.  The consultation transcript showed that during part of the consultation that was held in the absence of his daughter and daughter-in-law, the patient revealed to the appellant that he had had 40 odd years of venereal exposure, about 8 or 10 times a year and that the last occasion was some 2 to 3 years previously. The appellant made a provisional diagnosis of herpes simplex and informed the patient that his sickness may be related to sexual disease. He advised the patient to have laboratory tests which the appellant described as being “quite expensive… about several thousands”. He then produced a preprinted form in English and Chinese, outlining to the patient various tests that could be carried out for sexually transmitted diseases.

6.  When the patient indicated that he could only afford $1000 to $2000, the appellant offered to ‘save’ for the patient by confining the tests to the essential, stating that the cost would be “four to five thousands” and asked whether that was “OK”. When the patient said that he had to ask his children to pay, his daughter (“Chan Fung Lin”) was invited to join the appellant and the patient. She was told that the patient’s illness might not be herpes zoster but most likely was herpes simplex and might relate to sexually transmitted diseases for which tests were required. The appellant stated that “the most economical” was “around $4100 to $4200” and that a complete test would cost “$6000-$7000”.

7.  The appellant then repeated that “$4000 odd is for testing fees”. There was then this exchange between the daughter and the appellant:

“      Lin:  Do the tests now?

[Appellant]:  Yes, Now.  Take some blood, test urine.”

8.  The patient was asked to sign the preprinted form as completed by the appellant (“the form”). As the patient was illiterate, the appellant requested the daughter to sign the form on behalf of the patient. The form read:

9.  The appellant then took swabs and blood from the patient who was also asked to provide a urine sample. The appellant directed various tests to be made on those samples.

10.  The official receipt issued for the appellant’s charges for the visit on 20 February (“the first receipt”) read:

The receipt was a pre-printed document that only required the name of the patient and the relevant fee(s) to be completed by the appellant’s staff.

11.  On 21 February, the day after the first consultation, the patient’s son telephoned the appellant to know what symptoms had generated the need for the tests. He was told to attend the clinic with the patient on 22 February which he did. After seeing the appellant, the son paid the fee requested and a receipt was issued (“the second receipt”). That read:

12.  Pausing here, while the Chinese characters denoting “Laboratory Tests” shown in the first receipt were,in substance, identical to those appearing as the Chinese heading of the form and their meaning is clear, there is a discrepancy between the English translation of the Chinese characters appearing on the form (“investigation fee”) and on the receipt (“laboratory tests”). It is to be noted that all 7 members of the Council were Chinese.

13.  PathLab Medical Laboratories Ltd as well as GenePro Medical Biotechnology Ltd carried out the tests. The Council found (and it is not challenged) that while PathLab’s charge was $1400, the appellantcharged the patient $2780 and while GenePro’s charge was $175, the appellant charged the patient $1400.

14.  The Council declined to infer that the difference in the charges represented the appellant’s fee for the taking of samples, counselling and explaining the results to the patient. Rather, its approach was to give the statements made in the receipts and the form their plain and natural meaning. It concluded that the appellant had charged the patient excessively for the laboratory tests and that his conduct had fallen short of the standard expected among registered medical practitioners.

This appeal

15.  The only point of substance raised in this appeal relates to the role of the legal adviser. Mr Huggins QC who appeared for the appellant submitted that under regulation 8 (1) of the Medical Registration (Miscellaneous Provisions) Regulation, his only power is to advise on points of law.

16.  Regulation 8 states:

“8.  Advice by Legal Adviser

(1)  When the Legal Adviser to the Council advises the Council on any question of law as to evidence, procedure or any other matter, in any inquiry under section 21 of the Ordinance … he shall do so in the presence of every party to the proceedings or the person representing each party or, if the advice is tendered after the Council has commenced to deliberate as to its findings, every such party or person as aforesaid shall be informed of the advice that the Legal Adviser has tendered.”

17.  The first matter to consider is the proper construction of regulation 8 (1), specifically, whether the phrase “any question of law” qualifies “evidence, procedure or any other matter” or whether the phrase “any question of law” qualifies “evidence” only. Mr Huggins argued for the former and Mr Cooney for the latter.

18.  The rival contentions would require the first two lines of the regulation to be read differently. On Mr Huggins’ construction, the provision will have to be read as follows:

“When the Legal Adviser to the Council advises the Council on any question of law as to (1) evidence, (2) procedure or (3) any other matter …”

Mr Cooney’s construction, it will have to be read as follows:

“When the Legal Adviser to the Council advises the Council on (1) any question of law as to evidence, (2) procedure or (3) any other matter …”

19.  Mr Cooney submitted that in approaching the question of construction, the following matters had to be borne in mind. First, that the purpose or focus of regulation 8 (1) is transparency: hence, any advice given by the legal adviser to the Council must be made in the presence of every party to the proceedings. The obligation is triggered ‘when’ advice is given and, to that end, if the advice is tendered before the Council commences its deliberations, it must be given in the presence of every party to the proceedings and if the advice is tendered after deliberations have commenced, every party has to be informed of the advice tendered to the Council during its deliberations. Second, since the Council consists of lay members only, the need for a legal adviser to render assistance is recognised, inasmuch as section 3B of the Medical Registration Ordinance Cap. 161 requires the appointment of a legal adviser whose presence at a disciplinary hearing is mandatory. To confine his role to advising on questions of law only would be unduly restrictive given the rationale for having a legal adviser in the first place. Moreover, to adopt such a narrow construction would render his role difficult, if not unworkable in practice.

20.  Mr Cooney also relied on the observations of Hogan CJ in Wong Kai Fou v The Medical Council of Hong Kong [1967] HKLR 620. In that case, the Full Court had to consider the role contemplated for the legal adviser by the Ordinance and subsidiary legislation. The equivalent of regulation 8 (1) then was regulation 33. In that connection, Hogan CJ observed (at 625) that

“his primary purpose is to give advice on questions of law and procedure.  He does not have the obligation to sum up the facts for Council in the same way as the judge addressing the jury although the wide terms in which regulation 33 is drawn would not seem to preclude him from entering on the facts if he thinks that course appropriate.”

The complaint in that case was that if the legal adviser does deal with the facts then he should deal with them fully and fairly. As to that, Hogan CJ stated (at 625-6) that

“preferably a Legal Adviser if he dealt with the facts other than in answer to a specific question, should seek to deal with them comprehensively but we do not think we would be justified in laying down a rigid rule to that effect. It may be desirable sometimes to deal only with a matter that might be overlooked or cause some confusion.  Mention of one aspect of the facts to the exclusion of others would not in itself justify interference on appeal so long as the reference did not create a situation basically unfair to the person accused.”

21.  As a matter of statutory construction, I do not consider Mr Cooney’s reading of regulation 8 (1) to be the correct reading. In my view, as a matter of syntax, “any question of law” qualifies not only “evidence” but also “procedure or any other matter”. The Chinese text of regulation 8 (1) is unequivocal and confirms that construction. The way the provision is written in Chinese does not permit its being read otherwise: it is not capable of being read in the way put forward by Mr Cooney.

22.  While I agree with Mr Huggins as to how regulation 8 (1) is to be read, that is not dispositive of this appeal. The meaning of “any question of law as to evidence, procedure or any other matter” in the context of disciplinary hearings by a lay tribunal needs to be addressed. In such proceedings, questions of law seldom arise as such. More frequently than not, questions that do arise tend to be questions of mixed law and fact. In such a situation, what is the legal adviser to do?

23.  In my view, it could not have been the intention of the legislature that the legal adviser should render no advice. Nor do I consider that it could have been intended that any advice given in those circumstances be confined to aspects that could be said to be ‘pure’questions of law only because, as a practical matter, that is likely to be an impossible undertaking. For those reasons, I consider that the phrase “any question of law”has to be given a purposive construction and, where necessary, it is capable of embracing questions of mixed law and fact. Any other approach would emasculate the legal adviser’s role and render it impossible to perform.

24.  Mr Huggins identified three passages from the transcript of the proceedings which he said were of particular concern. It was submitted that they demonstrate that the legal adviser had exceeded his role and was acting ultra vires. The first two reflected advice given just before the Council retired to consider its verdict. The third related to advice given to the Council during the deliberations.

25.  The first two passages complained are inter-related and it would convenient to set these out together:

“      Legal Adviser:  Now, in relation to charge iii), I pose the following questions for you to consider – that is in relation to the excessive charges:

…

But, in order for you to consider whether the fees charged by the defendant was excessive, you should consider the following questions:

First question is: Was the fee stated as laboratory test, ie the amount of $4,180 in page 9 of the Secretary’s Bundle [the first receipt] – was it presented as the fee charged by the laboratory or as also including the defendant’s own fees for taking the test samples and explanation of the test results?

The second question is: Was the fee excessive having regard to the laboratory price stated at page 86 and also the evidence of the Defence Witness in, on the level of fees generally charged?  But as to the level of fees generally charged by doctors, this will only be relevant if you answer the first question as that amount includes also the defendant’s own fees.

…”

(Tr. p. 100 l. 22 – p. 101 l. 14)

“      Chairman:  Thank you for that, Legal Adviser.

But can you just clarify your second point, about excessive fees?  Now, you asked us to compare or you advised us to compare the price on page 86.  And then you went on to say whether it’s excessive or not.  Can you just clarify –

Legal Adviser:  Yeah.

Chairman: that point? --- we determine whether it’s excessive or not.

Legal Adviser:  Perhaps, I, I think on charge [i]ii), the relevant documents will be – perhaps let me first point out – the receipt at page 9 of the Secretary’s Bundle [the first receipt], showing the item of laboratory test at $4,180.  And then the breakdown of that item at page 21 of the bundle [the form], showing how the $4,180, was calculated.  And then the agreed price charged by the relevant laboratories at page 86.  All right, now, these are in relation to the laboratory fees.  However, you have heard Mr McCoy saying that it was – the receipt at page 9 [the first receipt] was – an incorrect statement or description of the nature of the fees.  It includes not only the laboratory fees but also the doctor’s own fees in this $4,180.

If your answer to my first question, ie whether that item does include the doctor’s own fees is in the affirmative, then you should also have regard of what the Defence Witness said what doctors in Hong Kong generally charge for the time, for the taking of samples and explanation, in order to determine whether this is excessive.

But however, if your answer to the first question is in the negative in the sense that the item only include, was presented as including only the laboratory’s fees, then I think the answer is obvious on its own, by comparison of the fees…”

(Tr. p. 102 l. 27 – p. 103 l. 28)

26.  When the Council returned from its deliberations, the legal adviser stated the following (being the third of the passages to which objection was taken):

“      Chairman:  Now, we resume.  Legal Adviser, please.

Legal Adviser:  Thank you, Chairman.

I have to inform parties that during deliberation, I was asked by the Council to further advise on the documentary evidence in relation to charge iii).  I advised the Council that they should give the plain and natural meaning to the statements in the documents.  However, if there is evidence which contradicts that plain and natural meaning, then they should decide whether a different meaning should be given to those statements.  So, that’s the advice I gave to the Council.  I wonder if parties have any comments.”

(Tr. p. 105 ll. 6-19)

27.  In short, the appellant’s objection was twofold: first, that what was said was ultra vires the legal adviser in that he had expressed his views as to the weight to be attached to a particular piece of evidence or as to the relative importance of different facts or pieces of evidence or as to the way the Council should approach the factual issues. Second, even if he had the power to do so, it amounted to a misdirection because it was an error to restrict consideration to the receipts; rather, it was said that the whole of the factual matrix should have been taken into account and, specifically, what was said during the first consultation as recorded in the consultation transcript.

Whether ultra vires

28.  The passages to which objection is taken need to be considered in their proper context. The advice (given in the first two passages) followed the exchange between the legal adviser and Mr McCoy SC (the appellant’s former senior counsel) that took place immediately after Mr McCoy’s closing submissions, clarifying the defence. The defence was that the statement in the first receipt of the actual nature of the fee was incorrect in that

“the total fee charged is simply the combination of a number of matters.  That includes explanation of the test outcomes …follow-up advice, counselling, and having earlier collected specimens.  So the fee itself needs to be disaggregated into these other matters.”

(Transcript p. 83, l.31B - p. 84, l.2)

Mr McCoy accepted that

“the generic description on the doctors charge of 'laboratory charges' is incorrect. …because the amount has to take up the follow-up advice and counselling and matters of that nature.”

(Transcript p. 84, ll.3-7)

29.  During the exchange clarifying the defence, the legal adviser asked whether there was any evidence to show that the statement in the first receipt was a wrong statement of the nature of the fees. This led to the following exchange:

“

Legal Adviser: Defence Counsel: Legal Adviser: Defence Counsel: Legal Adviser: Defence Counsel: Legal Adviser: Defence Counsel: Legal Adviser: Defence Counsel:

But was there any reference to, well, that component was wrongly described, it in fact included …? It, it’s not expressly stated anywhere. So you’re inferring from the fact that he did not subsequently charge for the explanation, therefore it must have been a incorrect statement. Precisely. So, that’s … Precisely. Inference. Yes, exactly. Yeah.  Thank you. And also it’s fixed in advance.  Page 21 [the form], it’s actually set out in advance. Page 21 [the form] is investigation fees and anything to do with the laboratory fees: laboratory test, the explanation, anything subsequent to that is obviously not the investigation; it’s the analysis of what has been revealed by the test.  There is no separate invoicing for that. ”

(Transcript p. 94, l.20 - p. 95, l.11)

30.  Thus it is clear from that exchange that whether or not the first receipt contained an incorrect statement was a matter of inference only. Mr McCoy acknowledged as much. Further, there was no suggestion by the defence that the inference was to be derived from the consultation transcript evidencing what transpired, in circumstances where the appellant chose not to give evidence himself. Accordingly, there were no relevant documents other than those identified by the legal adviser who, it is to be observed, correctly directed attention to the defence presented. The advice given concerned the proper construction of the statement contained in the first receipt, viewed in the context of the defence advanced.

31.  I do not accept that by giving the advice contained in the three passages complained of, the legal adviser was acting ultra vires because he was “entering on the facts”. The advice was on a question of construction which is a question of law and was unexceptionable. Accordingly, I reject the submission that the legal adviser had exceeded his powers under regulation 8 (1).

Whether a misdirection

32.  Mr Huggins’ fallback position was that even if it were within the powers of the legal adviser to render the advice contained in the three passages mentioned above, it would nonetheless remain objectionable as a misdirection. Again, exception was taken to the omission of any reference to the consultation transcript. But, in my view, the advice proferred could not be said to be biased or unfair. It set out the competing cases with specific reference to the defence advanced and it was a matter for the Council to decide whether or not there was evidence that contradicted the plain and natural meaning of the documentary evidence.

Conclusion

33.  I would dismiss this appeal. I would also propose that there be an order nisi of costs in favour of the Council.  

Hon Stone J:

34.  I respectfully agree with the judgment of Le Pichon JA, and in deference to the argument would venture a few words of my own.

35.  On the all-important issue of construction, notwithstanding the efforts of Mr Cooney SC to argue to the contrary, in my view there is no room for doubt but that the construction mooted by Mr Huggins SC is correct, and that the phrase “any question of law” qualifies the ensuing words “as to evidence, procedure or other matter…”

36.  I do not think that this construction creates any insurmountable difficulty. Whilst in recent months there appears to have been something of an ‘open season’ on the role of the legal adviser to the Council, with the alleged ‘transgressions’ of that adviser becoming the vehicle for argument in otherwise substantively unmeritorious appeals, in my judgment there is room for a substantial dose of realism and common sense in the application of the existing legislation to the facts of any particular case.

37.  As Le Pichon JA aptly has pointed out, the term “any question of law” must be given a purposive construction. It is seldom, if at all, that in a Tribunal of this nature there emerges that which may be described as a ‘pure’ point of law; the inevitable nature of the disciplinary process means that any specific factual matrix may yield difficulties or problems containing a legal complexion or nuance or implication, and the fact that the conscientious legal adviser tenders his advice upon the legal aspect which has been thrown up, or contained within, the particular facts of the particular case does not necessarily mean that thereby the adviser is acting outwith his statutory function.

38.  In short, the legal element which arises, and which necessitates legal advice as tendered, almost inevitably forms part of a question of mixed law and fact.

39.  In appeals from the Council (or indeed from other disciplinary tribunals), for my part I deprecate an emergent trend towards microscopic analysis of the transcript of the proceedings with the aim of formulating a technical argument that the legal adviser has ‘crossed the line’, thereby rendering an otherwise perfectly sensible and well-run disciplinary proceeding as potentially susceptible to subsequent judicial interference.

40.  That is not to say that on occasion such an argument cannot or should not succeed should the particular circumstances warrant: see, for example, the decision in Dr Chan Hei Ling, Helen v The Medical Council of Hong Kong, CACV 403 of 2006, Judgment dated 30 April 2009, wherein the facts established that the legal adviser had been involved in writing the decision of the Council consequent upon the disciplinary inquiry.

41.  This however was an exceptional case, and it strikes me that it is only when the legal adviser clearly and obviously has exceeded his legislative remit that an appeal founded upon his participation in the disciplinary process realistically is able to get off the ground.

42.  In the present case Mr Huggins SC took the view that the only reasonably arguable point available to him focused upon the alleged entry of the legal adviser into the ‘factual arena’, and in the circumstances of the case wisely abandoned the other substantive grounds of appeal as originally formulated.

43.  The fact that ultimately he has been unable to convince the court of the merit of his argument is not to be taken as criticism of the decision so to restrict argument in this appeal, and for my part I agree with the analysis of Le Pichon JA of the transcript passages of which complaint has been made, and with her conclusion that in acting as he did the legal adviser was not exceeding his statutory powers and responsibilities.

44.  I too would dismiss this appeal with costs.

Hon Bharwaney J:

45.  I agree with the judgments of Le Pichon JA and Stone J.

Hon Le Pichon JA:

46.  Accordingly, there will therefore be an order in terms of § 33.