DR. FONG KA YEUNG v. THE MEDICAL COUNCIL OF HONG KONG

CACV 159/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 159 OF 2007

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL OF HONG KONG MADE ON 10 MAY 2007)

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Hon Le Pichon JA :

1.  I agree with the judgment of Cheung JA.

Hon Cheung JA :

Facts

2.  Dr. Fong Ka Yeung (‘Dr. Fong’) is a specialist in neurology.  On 20 March 2004 Dr. Fong saw a patient Mr. Black (‘the patient’) who was referred to him by another doctor. At Dr. Fong’s recommendation MRI of the brain and cervical cord examination was performed on the patient on 26 March 2004 at the Hong Kong Adventist Hospital (‘the Hospital’).

3.  After the examination the radiologist informed Dr. Fong of the finding of hydrocephalus compatible with aqueductal stenosis.  Dr. Fong then telephoned the patient and recommended immediate admission to the Hospital.  It is at this point that the patient and Dr. Fong gave different versions of events as to what had happened next.

The patient’s version

4.  According to the patient he and Dr. Fong talked on the phone for about five minutes.  Dr. Fong told him of the finding and that he needed to be examined by a neurosurgeon who would perform a surgery to release the pressure on the brain.  Dr. Fong recommended immediate admission to the Hospital.  The patient, however, refused to be admitted immediately as he did not see the need to do so that night.  It was agreed between him and Dr. Fong that he would be admitted to the Hospital the following day i.e. 27 March 2004 at 10 am.  The patient then left the Hospital and went home without seeing Dr. Fong.

5.  Later that evening the patient’s fiancée spoke to Dr. Fong over the telephone asking him about the patient’s medical problem.  After that she searched on the internet for information about hydrocephalus.

6.  The patient was duly admitted the following day.  A surgery was performed on him and he remained at the hospital until he was discharged on 5 April 2004.  Between 1^st and 4^th April the patient was allowed to have ‘day leave’ from the Hospital but had to return at night.

Dr. Fong’s version

7.  According to Dr. Fong he telephoned the patient, informed him of the examination result and advised him of the need for immediate admission to hospital.  He also suggested that he would meet the patient at the Hospital that evening.  The patient agreed.  At 7.30 pm Dr. Fong arrived at the Hospital and met the patient at a room in the medical ward (Room M7).  He thought that the patient had by then already been admitted to the Hospital.  Dr. Fong advised the patient the result of the examination, recommended surgery as soon as possible and also to seek a neurosurgical opinion before making the final decision.  The patient was initially reluctant to undergo an immediate surgery as he was about to get married.  The discussion lasted for about half an hour. Eventually the patient agreed to have the surgery but requested to leave the Hospital that night.  It was agreed that he would return to the Hospital the next morning.  Dr. Fong denied having spoken to the patient’s fiancée over the telephone later that evening.  He said that he had a particularly clear memory of the face-to-face consultation with the patient in the presence of the fiancée because when he went into the ward he saw the patient and his fiancée in intimate acts of hugging and kissing.

8.  Surgery was performed on the patient on 28 March 2004 and Dr. Fong saw him at the Hospital between 27 and 31 March 2004.

Complaint about Dr. Fong’s fees

9.  Dr. Fong billed his charge by issuing a Physician Statement charging the patient $16,200.

「DFS-In-Patient Care :	Amount (HK$)
Date : From 26.3.04 To 31.3.04
Daily Rate : HK$2,700 X 6
Total No. of Day(s) : 6 days	16,200    」

10.  Dr. Fong said that later on 13 July 2004 he received a telephone from the patient stating he had the date of admission wrong and the number of days he charged was wrong.  Dr. Fong accepted the patient’s words.  He amended the Physician Statement by changing the date of 26 March 2004 to 27 March 2004 and the number of days from 6 to 5 and the amount of charge was reduced from $16,200 to $13,500.

11.  Dr. Fong then issued another Physician Statement for $5,000 in respect of

「DFC-Consultation Fee	Amount (HK$)
Date : 26.3.04	5,000      」

12.  The patient had insurance coverage with BUPA Health Insurance.  By then the patient had disputes with BUPA on the bills issued by Dr. Fong and the Hospital.

13.  In response to inquiry by BUPA, Dr. Fong on 4 August 2004 informed BUPA, among other things, that,

‘ I were (sic) also informed by Mr. Black on 13^th July that he was actually admitted on 27^th March 2004. I believed that there was a miscalculation due to wrong date entry and hence only 5 hospital visits were charged. Upon checking the hospital notes, I’ve refreshed my memory. In fact, an (sic) half-hour special consultation was given on the evening of 26^th March 2004.

The charges for my in-patient care should therefore be revised as follows :

Special consultation on 26th March 2004:	$5,000
Daily in-patient care (27th March to 31st March 2004) $2,700x5=	$13,500
Total:	$18,500
Amount settled at Adventist Hospital:	$13,500
Amount outstanding:	$18500-$13500=$5,000 ’

14.  On 18 July 2005 the patient complained to the Medical Council, about, among other things, over-charging by Dr. Fong.

The Charges

15.  On 5 December 2006 the Medical Council issued a Notice of Inquiry to Dr. Fong stating an inquiry was to be held for the following charges against him

‘That you, being a registered medical practitioner, disregarded your professional responsibility in that:

(1) You issued an untrue or misleading document regarding your patient, Mr. Graham Black (“the patient”) in that by a letter dated 4 August 2004 addressed to BUPA Health Insurance, you claimed that you saw the patient on 26 March 2004 when in fact you did not see the patient on that date but it was only a telephone consultation with the patient;

(2) You issued an untrue or misleading document regarding the patient in that by a letter dated 4 August 2004 addressed to BUPA Health Insurance, you claimed that you saw the patient on 28 March 2004 and 30 March 2004 when in fact you did not see the patient on these two dates;

(3) You charged a professional fee of HK$2,700 x 5 = HK$13,500 in respect of an alleged “daily in-patient care (27 March to 31 March 2004)” even though in fact you did not attend the patient at the Hong Kong Adventist Hospital on both the 28 and 30 March 2004.

In relation to the facts alleged both individually and cumulatively, you have been guilty of misconduct in a professional respect.’

The Decision

16.  After conducting the inquiry, the Medical Council found Dr. Fong guilty of the 1^st charge but not guilty of the 2^nd and 3^rd charges.  Specifically in respect of the 1^st charge, the Medical Council accepted the patient’s evidence that there was no meeting between him and Dr. Fong on 26 March 2004.  It rejected Dr. Fong’s evidence in this regard.  This is the relevant part of the decision

‘ 8. We bear in mind that an honest witness can be mistaken as to what happened. Having considered the evidence carefully, we are satisfied that the patient is an honest witness and gave reliable evidence as to what happened on 26 March 2004. His evidence is consistent throughout, and is consistent with all the hospital records including nurses’ notes, physician orders, blood pressure and temperature charts, and the radiology reports. He did not exaggerate his evidence, and fairly admitted that he was not sure about matters which he did not remember clearly. Well before any suggestion that the fiancée was present at the hospital during the alleged face-to-face consultation, the patient said that the fiancée was not being present at the hospital and only spoke to the Defendant over the telephone after the patient had gone home. On the other hand, the Defendant all along neither mentioned the presence of the patient’s fiancée nor the intimate conduct between the patient and his fiancée, until he was cross-examined during his oral evidence.

9. We find the Defendant an untruthful witness.  His evidence is inconsistent with the documentary evidence and is fraught with logical problems.  We shall set out only the main reasons for our finding.  Firstly, the Defendant accepted that the normal procedure for admission was for the patient to be registered at the reception and sign the relevant undertaking to pay the fees before he would be assigned to a ward and the necessary patient file would be prepared.  He also accepted that the special arrangement for the patient file to be prepared without such registration was the reverse of the normal procedure.  If that is the case, the patient file must have been prepared at the special request of the Defendant, and the Defendant could not have believed that the patient was already admitted.  Secondly, the Defendant claimed to have been given use of a single room by the hospital free of charge for the half-hour consultation.  We do not accept that the hospital would have made that arrangement without any record whatsoever, and that would have involved subsequent house-keeping activities.  Thirdly, the radiology reports dated 26 March 2004 stated that the patient was to be admitted on 27 March 2004.  As the Defendant must have taken part in the decision on the admission date, he must have known this admission date.

10. We note that an entry was made by the Defendant in the hospital’s record on 26 March 2004 at page 56 of the exhibits bundle.  The contents of that entry are inconsistent with a medical note made by a doctor after seeing a patient at the hospital.  The entry was in the form of a doctor’s pre-admission orders to the nurse in arranging for the intended admission of a patient.  On the other hand, if the patient had been admitted but given home leave afterwards, the Defendant would have recorded that home leave was approved for 26 March 2004.  This is an important matter as the hospital assumes responsibility of a patient after admission, and an in-patient will have to sign the “Temporary Absence Release” form releasing the attending doctor and the hospital from all responsibility during the absence, which was what happened in respect of each of the home leaves granted on 27 March, 2 April, 3 April and 4 April 2004.

11. We are further puzzled by the Defendant’s arbitrary manner in his dealing with the fee charged for 26 March 2004.  Although the level of the fee is not the subject matter of charge (1), the Defendant’s explanation is relevant to his credibility.  Despite the fact that he claimed to have a clear memory of what happened on 26 March 2004, he was mistaken when he filled out the fee note on 31 March 2004 and wrongly charged in-patient care fee for that day.  However, when it was shown that the item was clearly wrong, the Defendant on 13 July 2004 re-categorized the fee for that day as “special consultation” and increased the fee to $5,000.  When questioned about what he meant by “special consultation”, he said it was for emergency consultation for which his hourly rate was $5,000.  When he was asked what emergency there was, given that thepatient had clearly indicated his wish to go home but was persuaded by the Defendant to wait at the hospital, his explanation was that the patient did not object to waiting at the hospital.  We cannot see any basis for that arbitrary manner in varying the charge at will, as the service provided by the Defendant had not changed irrespective of the label he gave to it.  This can only reflect that the Defendant was making up his evidence in order to cover up the mistake he had made in the first place.

12. We are satisfied that the statement in the Defendant’s reply to the claims department of the insurance company that he had seen the patient at the hospital on 26 March 2004 is untrue.  We are satisfied that this conduct falls well below the standard expected amongst registered medical practitioners, particularly in the context that this statement was made in order to justify the fee charged for the alleged face-to-face consultation.  We find that it constitutes professional misconduct.  We find him guilty of charge (1).’

The appeal

17.  Dr. Fong now appeals against the decision.

Wrong standard of proof

18.  The first ground of appeal is that the Medical Council had been wrongly advised by its Legal Adviser on the standard of proof and had wrongly applied it.  The Legal Adviser directed the Medical Council that, 

‘ Secondly it’s on the standard of proof. The standard of proof should be along a sliding scale, ranging from proof on the balance of probabilities to the highest standard of proof beyond reasonable doubt. The standard should be commensurate with the gravity of the charge; in other words, a more serious charge will require a higher standard of proof. Where the charge involves allegations of elements of a criminal offence, that will require the highest standard of proof beyond reasonable doubt. However, looking at the charges before you, I do not see such allegations and I do not think the highest standard of proof beyond reasonable doubt is required.’

19.  In Solicitor (24/07) and Law Society of Hong Kong (2008) 11 HKCFAR 117 the Court of Final Appeal, per Bokhary PJ, first reaffirmed the two standards of proof in law :

‘ Two standards of proof

61. Only two standards of proof are known to our law.  One is proof beyond reasonable doubt and the other proof on a preponderance of probability.  The strength of the evidence needed to establish such a preponderance depends on the seriousness and therefore inherent improbability of the allegation to be proved.

62. A criminal charge must be proved beyond reasonable doubt.  A civil claim, on the other hand, is to be proved on a preponderance of probability.

63. Sometimes an allegation of grave or even criminal conduct is made in a civil case.  In such instances, it was common at one time for the courts to speak in terms of a degree of probability proportionate to or commensurate with the seriousness of the allegation.  References to a “degree of probability” are to be found in, for example, the English Court of Appeal cases of Bater v Bater [1951] P 35 at p.37 and Hornal v Neuberger Products Ltd [1957] 1 QB 247 at p.266.  Further examples are to be found in the House of Lords cases of Blyth v Blyth (No 2) [1966] AC 643 at p.669 and R v Secretary of State for the Home Department, ex p Khawaja & Another [1984] AC 74 at p.114.  As will appear from the more recent authorities to which I will come in due course, it is misleading to speak of “a degree of probability”.’

20.  The Court of Final Appeal then stated the standard of proof of disciplinary proceedings as follows :

‘ 116. In my view, the standard of proof for disciplinary proceedings in Hong Kong is a preponderance of probability under the Re H approach. The more serious the act or omission alleged, the more inherently improbable must it be regarded. And the more inherently improbable it is regarded, the more compelling will be the evidence needed to prove it on a preponderance of probability. If that is properly appreciated and applied in a fair-minded manner, it will provide an appropriate approach to proof in disciplinary proceedings. Such an approach will be duly conducive to serving the public interest by maintaining standards within the professions and the services while, at the same time, protecting their members from unjust condemnation.’

21.  In that case the Solicitors Disciplinary Tribunal found eight complaints of professional misconduct proved against a solicitor after applying ‘the civil standard albeit with the higher degree of probability commensurate with the gravity of the allegations’.

22.  That standard did not accord with the one stated by the Court of Final Appeal.  Nonetheless the Court held that,

‘ 117. Upon a fair reading of its Statement of Findings, there is on the Tribunal’s part no such error in regard to the standard of proof as would vitiate its findings against the Solicitor which he now appeals against to us. None of those findings are to be overturned for such error.’

My view on standard of proof

23.  In this case the decision of the Medical Council was given on 10 May 2007 which predated the judgment of the Court of Final Appeal given on 13 March 2008.  The standard referred to by the Legal Adviser was not in accordance with the one given by the Court of Final Appeal.  However, I do not consider that the Medical Council’s finding is vitiated by the issue of standard of proof for the following reasons :

(1) Based on a fair reading of the decision, the Medical Council is in my view correct in arriving at its findings.  This will be apparent when I address the other grounds of appeal.

(2) The direction by the Legal Adviser that the Medical Council should on the facts of this case exclude the application of the ‘standard of proof beyond doubt’, does not mean that the Medical Council was not aware of the heavy burden in terms of compelling evidence that was required in order to establish the case against Dr. Fong.  The Medical Council was directed by the Legal Adviser that the standard should be commensurate with the gravity of the charge : a more serious charge will require a ‘higher’ standard of proof.  The Legal Adviser had earlier referred to a sliding scale and later referred to the proof beyond reasonable doubt as the ‘highest’ standard.  The ‘higher standard of proof’ in this context can only mean the requirement of compelling evidence to prove the serious charge.

(3) The understanding by the Medical Council of the need for compelling evidence is clearly reflected in its acquittal of Dr. Fong of the two other charges that he faced.  This is what the Medical Council said,

‘ We then turn to charges (2) and (3). Both charges are premised on the lack of attendance on 28 March and 30 March 2004. There was no record whatsoever of the Defendant’s attendance on those two days. However, the records are not conclusive, as it is obvious from the documents that there is no systematic record, either by the attending doctor or by the nurses, of the attendance of a doctor. The patient is unable to remember clearly whether the Defendant had attended him on those two days, and admitted that he drew inference from the records that the Defendant had not done so. This is understandable, in view of the fact that the patient had undergone a brain surgery. In the patient’s oral evidence, he initially said that from his memory he believed that the Defendant was present at the pre-operative consultation on 28 March 2004, but he subsequently said that statement was wrong. Bearing in mind that the burden is on the Legal Officer to prove the charges, we cannot be satisfied that the Defendant did not attend the patient on those two days. In the circumstances, we find the Defendant not guilty of charges (2) and (3).’

The approach

24.  Grounds 2 and 3 of the grounds of appeal deal with the assessment of evidence by the Medical Council.  Before I examine these two grounds it is necessary to bear in mind the following :

(1) As pointed out by the Court of Final Appeal at paragraphs 119 and 120 the correct approach of the Court when reviewing findings of professional disciplinary bodies is the one stated by Lord Cooke of Thorndon in Preiss v. General Dental Council [2001] 1 WLR 1926 that

‘ In [Ghosh’s case at p.1923F-H] the Board has recently emphasised that the powers are not as limited as may be suggested by some of the observations which have been made in the past. An instance, on which some reliance was placed for the General Dental Council in the argument of the present appeal, is the observation in [Libman’s case at p.221], suggesting that findings of a professional disciplinary committee should not be disturbed unless sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence was misread. That observation has been applied from time to time in the past, but in their Lordships’ view it can no longer be taken as definitive. This does not mean that respect will not be accorded to the opinion of a professional tribunal on technical matters. But, as indicated in Ghosh, the appropriate degree of deference will depend on the circumstances.’

(2) While the modern approach places the Courts in a truly appellate position, nonetheless the appellate court’s restrained approach in relation to finding of facts by the trial court or tribunal has not been changed.  This is illustrated by what the Privy Council said in Gupta v. General Medical Council [2002] 1 WLR 1691, per Lord Rodger of Earlsferry :

‘ 10 The decisions in Ghosh and Preiss are a reminder of the scope of jurisdiction of this Board in appeals from professional conduct committees. They do indeed emphasise that the Board’s role is truly appellate, but they also draw attention to the obvious fact that the appeals are conducted on the basis of the transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses’ credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situation described by Lord Thankerton in the well known passage in Watt or Thomas v Thomas [1947] AC 484,487-488.’

Overview

25.  It is further helpful to take an overview of the case before examining the individual complaints. 

(1) This is a simple case of whether Dr. Fong and the patient had a face-to-face consultation in a room in the Hospital on the evening of 26 March 2004.

(2) In this regard the Medical Council had made a finding of fact by accepting the evidence of the patient.  It held that the patient was an ‘honest witness and gave reliable evidence’.  On the other hand it held that Dr. Fong was not a truthful witness.  It had of course observed both the patient and Dr. Fong giving evidence but it did not merely decide the issue by reference to their demeanour.  Although it was not expressly stated as such, the Medical Council obviously had also decided the case by reference to the inherent probability of the respective cases advanced by the parties.  This can be seen by the Medical Council holding that Dr. Fong’s evidence was ‘inconsistent with the documentary evidence and is fraught with logical problems’.

(3) The stark fact is that Dr. Fong had not produced any note of the special consultation he had with the patient which lasted for more than half an hour. This is despite the fact that, according to his evidence, he wrote on the ‘Physician Orders’ after the patient left after the consultation.  What was written is the following :

「26.3.04

DAT [i.e. Diet as tolerated]

BP/P B.D. [i.e. Instruction to check blood pressure and pulse twice a day]

Consult Dr. K. H. Chan for surgical decompression/ shunting or endoscopic 3^rd ventriculostomy

(Signature i.e. Dr. Fong)」

(4) It is true that, unlike a criminal appeal where this Court can apply the proviso in section 83(1) under the Criminal Procedure Ordinance (Cap. 221) to dismiss an appeal even when there are material directions and irregularities if the Court is satisfied that there is no miscarriage of justice, this Court has no similar power in hearing appeals from medical disciplinary proceedings. However, as Dr. Fong is inviting this Court to disturb a finding of fact by the Medical Council, he must establish there is indeed material misdirection or omission.  In deciding whether a misdirection or omission, if it exists, is material, this Court is clearly entitled to consider all the circumstances of the case.

Medical Council misunderstanding the evidence

26.  The second ground of appeal is that the Medical Council had misunderstood the evidence.  It was submitted that by paragraph 8 of the Medical Council’s decision which related to the patient’s fiancée, it made an important error in its understanding of Dr. Fong’s case, thereby vitiating its evaluation of his evidence.  The finding by the Medical Council was a finding of recent fabrication by Dr. Fong.  This was inaccurate and unfair because counsel for Dr. Fong (not Mr. Huggins S.C. who only appeared in this appeal) had put the presence of the fiancée to the patient in cross-examination and Dr. Fong had also referred to this in his own evidence in chief.

My view

27.  I do not consider that there is any substance in this ground.  While Dr. Fong had, through counsel, put to the patient that his fiancée was with him on 26 March 2004 and Dr. Fong had also referred to her presence in his evidence in chief, the point is that he only talked about seeing the intimate acts, like hugging and kissing, of the patient and his fiancée which he said was the reason why he could remember seeing them both in the medical room on 26 March 2004, when he was questioned by one of the Medical Council members.  This was after the Legal Adviser had finished his cross-examination and after Dr. Fong’s own counsel had said that there was no re-examination.  If the observation of the intimate acts was the reason why Dr. Fong could remember the event of the face-to-face consultation, he could easily have mentioned it earlier in his evidence particularly when he was being challenged by the Legal Adviser about the accuracy of his memory.  If indeed the intimate acts had happened, this could have been put to the patient when he was being cross-examined by Dr. Fong’s then counsel.  It was never put to him.

Matters not put to the patient

28.  Mr. Huggins S.C. submitted that the Medical Council had relied on four matters adverse to Dr. Fong, three of which (initially Mr. Huggins had relied on four) were never put to Dr. Fong for him to respond by either the Legal Adviser or the Medical Council. It was submitted that had they been put to Dr. Fong, he would have had an opportunity to answer them.  This vitiated the Medical Council’s fair and proper evaluation of Dr. Fong’s case.

29.  These four matters are :

(1) Room M7 would not have been made available for use by Dr. Fong for a consultation ‘without any record whatsoever and that would have involved subsequent house-keeping activities’.

(2) Dr. Fong must have taken part in the decision on the admission since it was recorded on the radiology report and, therefore, must have known that the admission date was 27 and not 26 March 2004.

(3) An in-patient would have had to sign a ‘Temporary Absence Release’ if the patient had indeed been admitted but released on the night of 26 March 2004.

(4) When being challenged, Dr. Fong tried to salvage his position by claiming that there was a face-to-face consultation and that he had tried dishonestly to cover up the mistake he had made.

My view

30.  I do not consider that these are valid complaints for the following reasons :

(1) It is recognised that as a general rule if a witness is to be impeached on his credibility he should be given an opportunity of explanation which is open to him. The exception is where notice has been given or where the point is so apparent.  Lord Herschell LC stated in Browne v. Dunn (1894) 6 R 67 (HL) stated at 71 that,

‘ Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it.’ (emphasis added)

(2) Further as stated by Lord Diplock in Hoffmann-La Roche v. Trade Secretary [1975] AC 295 at 369D that

‘ Even in judicial proceedings in a court of law, once a fair hearing has been given to the rival cases presented by the parties the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.’

The reference to ‘natural justice’ in this passage must, in my view, now be read as a reference to ‘principle of fairness’ under modern jurisprudence.

(3) Dr. Fong said that he believed the patient was already admitted on 26 March 2004. The Medical Council clearly disbelieved him at paragraph 9 of the Decision when it referred to his acceptance of the usual procedure for registering an admission and the need for special arrangement for the preparation of the patient file before admission.  The short point made by the Medical Council was in effect that as the patient was not yet admitted (a fact which Dr. Fong must have known) how could a room in a medical ward (i.e. M7) be used free of charge.  The fact that there was no record of Room M7 being used free of charge for the consultation was not something that needed to be put to Dr. Fong. The available Hospital record was seen by the parties and was before the Medical Council.  Dr. Fong must have notice of this point.

(4) Written between the 26 March 2004 entry and the 27 March 2004 entry of the Physician Orders was ‘M7’.  Next to this was a signature and ‘@ 27/3/04 1200’.  Against the 27 March 2004 entry was also written ‘M7’.  Dr. Fong said the first ‘M7’ was written by the nurse.  I do not consider that this would discredit the patient’s case or support Dr. Fong’s case that a face-to-face consultation was held at Room M7 on 26 March 2004.  The Physician Orders was a doctor’s pre-admission order to the Hospital in arranging for the intended admission of a patient.  Dr. Fong’s evidence was that he wrote the entry on the Physician Orders after the consultation.  He agreed that by then the patient had already decided that he would not be admitted that day.  This must be best evidence that Dr. Fong’s belief that the patient was already admitted on 26 March 2004 was wrong.  The Medical Council must also have rejected the idea that Dr. Fong might have been genuinely mistaken.  Although the Medical Council at paragraph 18 of the Decision stated that ‘It was likely to have been a careless mistake in the first place’, this must be a general observation of the mistaken recollection of Dr. Fong when he issued his fees on 31 March 2004 and not a specific reference to the mistake on the admission of 26 March 2004.

(5) In my view the reference to ‘M7’ may well be a notation by the nurse that the patient was to be put in Room M7 upon his admission the next day on 27 March 2004 at 10 am.  But whatever may be the position, the important point is that the entry ‘M7’ does not indicate Room M7 was in fact used on 26 March 2004 free of charge before the patient was admitted.  Other doctors sitting as members of the Medical Council must have knowledge about how the Hospital deals with the use of consultation rooms before a patient is admitted. 

(6) The radiology report had the typewritten words ‘To be admitted 27/3’ (i.e. to be admitted on 27 March 2004).  Mr. Huggins accepts that the Legal Adviser had put to Dr. Fong in cross-examination that he told the radiologist the date of the admission but complains that the date mentioned in the radiologist’s report was hearsay in nature and the Medical Council should not rely on hearsay evidence in convicting Dr. Fong. I agree with Mr. Ismail, counsel for the Medical Council, that given only Dr. Fong could have informed the radiologist as to the admission date and recorded as such in the report and given the specialised knowledge and experience of the members of the Medical Council, the Medical Council was perfectly entitled to reject Dr. Fong’s account of the event and it was justified in finding that Dr. Fong must have taken part in the decision as to the admission date recorded on the radiology report.

(7) Despite Dr. Fong having agreed that the patient had decided not to be admitted on 26 March 2004, he further stated that the patient was likely to have taken home leave that night because he believed the patient had been formally admitted already.  The latter view cannot stand in the light of his earlier answer.  But a more important point is that while Dr. Fong himself had addressed the issue of home leave, yet according to the Hospital record there was no ‘Temporary Absence Release’ form signed by the patient for home leave on 26 March 2004.  I do not think that the absence of such a record was something that needed to be put to Dr. Fong.  Since Dr. Fong was the physician dealing with the patient that night he ought to have known of the procedure for home leave particularly when there were forms signed by the patient for home leave on 27 March, 2, 3 and 4 April 2004.

(8) I do not consider that the Legal Adviser or Medical Council was required to put to Dr. Fong about his trying to salvage the position and cover up his mistake which the Medical Council stated at paragraph 18 of its Decision when it dealt with the sentence.  In my view this is a conclusion which the Medical Council was entitled to come to on the facts of the case.

Conclusion

31.  In my view Dr. Fong was rightly found guilty of the 1^st charge.  The appeal is accordingly dismissed with a provisional costs order in favour of the Medical Council.

Hon Kwan JA : 

32.  I agree with the judgment of Cheung JA.

Hon Le Pichon JA :

33.  Accordingly, there will be an order in terms of paragraph 31.