FONG YIU v. CHINESE MEDICINE COUNCIL OF HONG KONG

[English Translation – 英譯本]

CACV 66/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINITRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 66 OF 2016

(ON APPEAL FROM AN ORDER OF THE CHINESE MEDICINE COUNCIL OF HONG KONG DATED 2 MARCH 2016)

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JUDGMENT

Hon Cheung JA (giving the judgment of the Court):

I.   Background

1.  Criminal charges

1.1   The Appellant is a registered Chinese medicine practitioner.  On 17 October 2014, he was found guilty of the following five offences at the Kowloon City Magistrates’ Courts:

Count 1:   “Unlawful sale of Part I poison”, contrary to ss. 21, 33(1) and 34 of the Pharmacy and Poisons Ordinance (Cap. 138);

Count 2:   “Unlawful sale of Part I poison”, contrary to ss. 21, 33(1) and 34 of the Pharmacy and Poisons Ordinance;

Count 3:   “Unlawful sale of Part II poison”, contrary to ss. 26, 33(1) and 34 of the Pharmacy and Poisons Ordinance;

Count 4:   “Possession of Part I poison”, contrary to ss. 23(1), 33(1) and 34; and

Count 5:   “Possession of unregistered proprietary Chinese medicine”, contrary to ss. 119(1)(c) and 155 of the Chinese Medicine Ordinance (Cap. 549).

1.2   The Appellant denied Charges 1 to 4 while admitted Charge 5 at trial in the Magistrate’s Court.  He was convicted of Charges 1 to 4 after trial.

1.3   The prosecution case of the above case is as follows:

1.4   On 15 March 2013, Prosecution Witness 2, Ms. Ng (PW2) took her son who suffered from eczema to the Appellant’s clinic for consultation.  According to PW2, the Appellant examined her son and gave a prescription to the nurse for her to prepare the medicine.  Upon payment, PW2 received 7 packets of medicated powder, 1 bottle of medicinal liquid and 1 box of medicated ointment (P1).  P1 was a western drug, containing the poison as particularized in Charge 1.  PW2 said that she went to the clinic to get the receipt and the prescription the next day.  She said her son was getting better after the application of the ointment.

1.5   PW2 took her son to the clinic for a medical follow-up.  She said the Appellant prescribed some medications to her son again which included 7 packets of medicated powder, 1 bottle of medicinal liquid and medicated ointment (P2). Since PW2 believed the medications in the prescription were the same, she did not ask for the prescription.  A few days later, her son felt itchy and PW2 suspected that the ointment contained steroids, so she lodged a complaint directly with the Department of Health (DH) and passed the items including the ointment (P1, P2 and medicated powder (P3)) to the staff member, Mr. Wong (PW1).  P2 was a western drug, containing the poison as particularized in Charge 2 while P3 contained the poison as particularized in Charge 3.

1.6   On 11 April 2013, a pharmacist of the DH and other DH staff went to the clinic for investigation.  They found from the dispensary 60 odd types of medicine suspected to be unregistered or contain western drug ingredient (including P4), but they did not find any medicine identical to P1, P2 and P3.

1.7   During the trial, the Appellant elected not to give evidence nor call any witnesses. His defence was that he denied the medicine in question was prescribed by him to PW2 and her son.

1.8   The magistrate accepted PW2’s evidence and found that the Appellant sold the poisons referred to in Charges 1, 2 and 3.  He also found that the Appellant was in possession of the poison referred to in Charge 4.

1.9   The Appellant lodged an appeal against conviction with Mr. Justice Tong of the Court of First Instance of the High Court, but the appeal was dismissed.

2.  Disciplinary hearing

1.10   The Chinese Medicine Practitioners Board (“the CMPB”) of the Chinese Medicine Council of Hong Kong considered that the Appellant’s commission of the above offences was breach of s.98(2)(a) of the Chinese Medicine Ordinance, that is, he “has been convicted in Hong Kong of any offence punishable with imprisonment”, and held a disciplinary inquiry.  The Appellant admitted the disciplinary charge.  The CMPB’s penalty was to order that the name of the Appellant be removed from the Register for a period of 12 months.  The Appellant now appeals to the Court of Appeal against the penalty order made by the CMPB.

1.11   The Appellant committed an offence of “Possession of Part I Poison” on 5 May 2009. In this connection, the CMPB found the Appellant guilty of the disciplinary charge on 21 January 2010 and ordered that his name be removed from the Register of Chinese Medicine Practitioners for a period of three months but suspended its application for 12 months.

II.   Grounds of appeal

1)   “The Appellant’s premeditated omission of western drugs in the prescriptions”

2.1   In this appeal, the Appellant puts forward a number of grounds of appeal, but the substantive dispute is about the CMPB’s ruling that in order to sell the western drugs in question to his patient, the Appellant had deliberately left them out in the prescriptions.

2)   The ruling of the CMPB

2.2   The CMPB recorded how it handled this issue in its Decision and Reasons dated 2 March 2016:

“Disciplinary order of the Chinese Medicine Practitioners Board (“the CMPB”)

21.   Before making the disciplinary order, the CMPB asked in the question to the legal representative of the Defendant: According to the circumstances under which the Defendant committed the offences and the Defendant’s statement, while the Defendant, in the prescription he gave to the patient concerned, did not include in writing the western drugs referred to in the criminal charges, the assistant who distributed medicine to the patient concerned in Defendant’s clinic was able to distribute those western drugs in the dispensary of the clinic, and during the raid subsequently made by the Department of Health, no western drugs or the above western drugs distributed to the patient in the Defendant’s clinic were found in the clinic including the dispensary. Under these circumstances, would the Defendant explain how come his dispenser was able to distribute the offending western drugs to the patient concerned?  The legal representative of the Defendant asked for a short suspension of the inquiry so that instructions could be taken from the Defendant. When the inquiry resumed, the CMPB was told that the above question was a question that was difficult to answer.  The Defendant indicated through his legal representative that the medicine he prescribed at that time had all been listed in the prescription, and that the nurse had distributed the medicine to the patient according to the prescription and had not given any other medicine to the patient.  The legal representative of the Defendant reiterated that they did not seek to reverse the judgment the court then made, but the point was the Defendant could not have known his patient had made a complaint nor could he have known beforehand that the officers of the Department of Health would raid his clinic suddenly, so if there were those drugs mentioned above in the dispensary of the Defendant’s clinic, the officers of the Department of Health should have been able to find them.

...

24.   The most problematic area in this case is when the medicine was dispensed in the Defendant’s clinic, the dispenser was able to obtain the abovementioned western drugs and distribute them to the patient concerned in spite of their absence in the Defendant’s prescription. In response to the question raised by the CMPB, the answer provided by the Defendant’s legal representative could not at all account for the above situation.  Furthermore, the complexity and the suspicion of the above issue could be seen from the fact that no western drugs mentioned above were found in the clinic during the raid made by the Department of Health.  The only reasonable conclusion that the CMPB can draw is that when prescribing and selling the medicine in question to the patient concerned, the Defendant had a tacit understanding with the dispenser that in the absence of the western drugs in the prescription, first, the dispenser could still obtain the western drugs and the poisons concerned and secondly, distribute the same to the patient.  From the above inferences, it can be seen that the Defendant omitted the western drugs in question in the prescription with premeditation.  The CMPB do not accept the so-called explanation offered by the Defendant during the inquiry.” [Emphases added by this Court]

III.   This Court’s views

1)   Legal principles

3.1 Under s.98(2) of the Chinese Medicine Ordinance, the CMPB can inquire into the conduct of a registered Chinese medicine practitioner in the following circumstances, that is, the Chinese medicine practitioner

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

b)   is guilty in Hong Kong or elsewhere of misconduct in any professional respect;

c)   has obtained registration by fraud or misrepresentation;

d)   was not at the time of his registration qualified to be registered;

e)   has breached a condition or conditions imposed by the Practitioners Board on his practice of Chinese medicine;

f)   has failed to disclose a conviction in Hong Kong or elsewhere of an offence punishable with imprisonment to the Registrar in accordance with s.79(a); or

g)   has failed to disclose a record of misconduct in any professional respect to the Registrar in accordance with s.79(b).

3.2   Under s.103(1) of the Chinese Medicine Ordinance, any person who is not satisfied with an order made by the CMPB may appeal to the Court of Appeal.  The Court of Appeal may “affirm, reverse or vary” the order of the CMPB: s.103(2).

3.3   In Lau Koon Leung v Medical Council of Hong Kong [2006] 3 HKLRD 225, the Court of Appeal cited the following two authorities to explain the legal principles adopted by the Court of Appeal in respect of an appeal against a decision made and a penalty imposed by a disciplinary committee of a professional body: The Court of Appeal will accord an appropriate measure of respect to the decision of the disciplinary committee on whether a professional’s failings amount to professional misconduct and on the penalty necessary to maintain professional standards and provide protection to the public interest. However, the Court of Appeal will not defer to the disciplinary committee’s decision more than what is warranted by the circumstances.  The Court of Appeal is entitled to consider all the matters to decide whether the penalty imposed by the disciplinary committee was necessary and appropriate in the public interest or was excessive and disproportionate, and in the latter event to substitute an appropriate penalty for the original order (see Ghosh v. General Medical Council [2001] 1 WLR 1915).  Examples of penalty imposed by disciplinary committee being reversed by the Court of Appeal include one that is out of tune with the evidence or is wrong in principle (see Preiss v. General Dental Council [2001] 1 WLR 1926).

3.4   Though the three appellate judges in Lau Koon Leung were divergent on the result of the case, they unanimously applied the principles of the above two authorities.  The only difference in opinions among them was the weight to be given to the penalty imposed by the disciplinary committee.

3.5   The legal principles of Ghosh and Preiss were approved by the Court of Final Appeal in A Solicitor (24/07) v. The Law Society of Hong Kong (2008) 11 HKCFAR 117 and Sin Chung Yin Ronald v. Dental Council of Hong Kong [2016] 19 HKCFAR 528.

2)   The present case

3.6   In the present case, it is obvious that the period of 12 months for which the CMPB decided to remove the name of the Appellant from the Register was based on the aggravating factor that it considered to exist in the case, namely that the Appellant omitted the western drugs concerned in the prescriptions with premeditation when selling the western drugs that contained poison.  In other words, when fixing the period of 12 months, the CMPB relied on this serious conduct that it considered to be a professional misconduct.

3.7   We consider that the reasoning for such penalty is not proper.  First, the disciplinary allegation against the Appellant was not the second situation set out in s.98(2), i.e. that he “(was) guilty of misconduct in a professional respect” but simply that “the Appellant has been convicted of any offence punishable with imprisonment” as stipulated in s.98(2)(a) of the Chinese Medicine Ordinance.  Based on this allegation, there was no need for the CMPB to inquire whether the nature of the Appellant’s conduct rendered him guilty of misconduct in a professional respect; it just (needed to) make the disciplinary judgment based on the criminal convictions of the Appellant beforehand.  This is because the offence that the Appellant admitted has already constituted a misconduct in a professional respect.

3.8   According to the conviction record kept by the Magistrates’ Court, the magistrate did not make any findings on how the Appellant dispensed medicine.  The magistrate only found that the prescription written by the Appellant was a simple record and it was not surprising that there was no record of the ointment and the medicated powder in question.  Under these circumstances, there was no need for the CMPB to deal with the matter as to how the Appellant sold the western drugs that contained poisons because the Appellant’s act of misconduct was the commission of the relevant criminal offences instead of the way he sold the western drugs.  We accept that the CMPB was entitled to enhance the penalty based on the Appellant’s conduct, but it must have made clear its approach from the very beginning and informed the Appellant that it was going to make a thorough inquiry into this separate issue including that the Appellant had the right to testify and call witnesses.   It should not have enhanced the relevant penalty by simply relying on the answers provided by the legal representative of the Appellant to the questions raised by the legal adviser of the CMPB.

3.9   In any case, we do not agree with the inference drawn by the CMPB that the Appellant omitted the western drugs (in the prescription) with premeditation. Mr. Wan, on behalf of the Appellant, contended by citing paragraph 44(3) of Lau Koon Leung that the inquiry concerned should adopt the criminal standard of proof.  The Respondent did not submit any authorities to the contrary regarding the standard of proof of the hearing of disciplinary committee.  According to such standard, in the absence of an inquiry, the inference drawn by the CMPB could not be the only reasonable inference of the case.  The Respondent claimed that during the inquiry, the Appellant only indicated to the CMPB that the question it raised was a question that was difficult to answer and did not rely on any innocent explanation.  But as stated earlier, if the CMPB was minded to enhance the penalty to be imposed on the Appellant on the basis of this matter, it must have expressed it clearly and made inquiry into the issue.

3.10    Both parties submitted to this Court five previous disciplinary hearings concerning the penalties imposed by the CMPB:

	Name	Date(s) of inquiry
1)	SO Wai-jia	5/10/2006 & 30/3/2010
2)	NG Yu-fung	1/9/2011 & 16/10/2012
3)	YIP Koon-yun	18/9/2014 & 24/2/2016
4)	KUM Wing-shing	22/6/2015
5)	YIU Kun-yuen	16/5/2014

3.11    The CMPB, in a number of cases, ordered the names of the Chinese medicine practitioners concerned be removed from the Register for a period that varied with the facts of the cases.

3.12    Given that the facts of the five cases are different, we consider we cannot refer to the removal periods in those cases to determine whether the removal period in this case was appropriate.  We can only refer to the elements of this case relied on by the CMPB to determine whether the penalty it imposed was appropriate or not.  We hold that the CMPB erred in principle by relying on an inappropriate element to enhance the penalty imposed on the Appellant.  In this connection, the penalty of removing the Appellant’s name from the Register for a period of 12 months is not appropriate.  In our view, in the absence of the element for enhancement that the CMPB had relied on, the appropriate period of removal is 9 months.

IV.   Conclusion

4.  We allow this appeal and vary the period for which the Appellant’s name be removed from the Register to one of 9 months.  We order that both parties submit their written submissions in respect of costs of this appeal within 14 days.