WAN PAK KWONG RAYMOND v. THE NURSING COUNCIL OF HONG KONG

CACV 248/2022

[2023] HKCA 272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 248 OF 2022

(ON APPEAL FROM THE ORDER MADE BY THE NURSING COUNCIL OF HONG KONG DATED 24 MAY 2022)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is an appeal brought by a registered nurse against an order made by the Nursing Council of Hong Kong (“Council”) to remove him from the register of nurses (“Register”) without specifying a period of removal, pursuant to section 17(1)(i) of the Nurses Registration Ordinance, Cap 164 (“NRO”). The appellant does not challenge that he should be disciplined as charged, or that he should be removed from the Register. He only seeks to vary the sentence by adding a specified period to the removal, pursuant to section 17(1)(ii) of the NRO, contending that the sanction is in effect a “life sentence”, and that it is manifestly excessive and disproportionate and out of tune with previous decisions of the Council.

Background

2.  The charges against the appellant as stated in the Notice of Inquiry dated 18 August 2021 are as follows:

“That you, being a registered nurse, were convicted on the 17^th day of December 2019 at the West Kowloon Magistrates’ Courts of two counts of the offence of ‘indecent assault’, which is an offence punishable with imprisonment, contrary to section 122(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong.”

3.  These are the relevant background matters.

4.  The appellant first became a registered nurse in July 2010. At the material time, he was a registered nurse working in the Tsuen Wan Adventist Hospital where he had been since January 2018. He was then 34 years old and was married for five years with a four-year old daughter.

5.  In around March 2019, the appellant was promoted to the position of a senior registered nurse in the hospital. Not long after, in about April 2019, he found out about the extra-marital affair of his wife.

6.  On 13 May 2019, the appellant was the shift in charge of the ward in the early hours. There was only one female patient in room 1712. She was put on medication and had fallen asleep. At about 3 am of 13 May 2019, the patient felt her bra and shirt had been pulled up and someone was grabbing both her breasts for about two to three seconds. She was tired and could not speak at the time and she had no strength. After a short while, the patient was woken up again by someone grabbing her left breast and licking her nipple for about three to four seconds.

7.  At about 7 am, the patient woke up and found the position of her bra was changed and her mask was pulled down to her neck. She made a complaint to the staff. The appellant was arrested on the same day at his home for the offence of indecently assaulting the patient. He resigned from his job in the hospital in June 2019.

8.  The patient was medically examined by the pathologist and skin swabs were taken of her left breast. She positively identified the appellant in an identification parade. CCTV footage of the corridor outside room 1712 revealed that the appellant was the only person who had entered the room for six times between 02:42 hours and 05:52 hours on 13 May 2019 and in particular he had stayed in the room alone with the patient for almost 23 minutes from 03:00 hours to 03:23 hours. The chemist’s examination result revealed that salivary stain containing human DNA originated from the appellant was found in the samples of left breast swabs of the patient.

9.  In September 2019, the appellant was formally charged with two counts of indecent assault arising out of the above incident, contrary to section 122(1) of the Crimes Ordinance, Cap 200. On 17 December 2019, he pleaded guilty to the two charges in West Kowloon Magistrates’ Court and was convicted on his own plea. He was represented by counsel. He was sentenced to four months’ imprisonment on the 1^st charge and six months’ imprisonment on the 2^nd charge, of which two months were ordered to run concurrently to the 1^st charge, making a total term of imprisonment of eight months. He was released from prison on 27 May 2020.

10.  On 18 December 2019, the Council received an anonymous complaint against the appellant in respect of the indecent assault. As mentioned, the Notice of Inquiry was issued against him in August 2021.

The hearings before the Council and the decision

11.  The appellant appeared in person before the Council on 5 November 2021 and admitted his criminal conviction of the two counts of indecent assault. The Council heard his submissions in mitigation, questioned him at some length on a number of matters including the circumstances in which the two offences of indecent assault were committed, and the measures taken for his treatment and rehabilitation before and after serving the prison term.

12.  The Council summarised the submissions made by the appellant at that hearing as follows:

“(i) [the appellant] says he is now separated with his wife but continues to support his parents;

(ii) [the appellant] is now engaged in private nursing and only provides service to male patients; he would not perform sensitive procedures while he is alone with the patient;

(iii) [the appellant] submits that he was punished for the crimes he committed; he served the first 2 months of his imprisonment in Siu Lam Psychiatric Centre where he was assessed as a sexual offender. [The appellant] claims that the psychologist assessed him to be of low re-offending risk;

(iv) [the appellant] says he committed the offences because he was unable to deal with and manage his emotional being at the time; he has since learned to open up more to people close to him; he also spends more time in sports;

(v) [the appellant] says he did not derive any pleasure out of the criminal acts he did, he was simply scared; the incident was traumatic to him though he acknowledges that it must have been traumatic to the patient as well;

(vi) [the appellant] alleges that he is rehabilitated via the programs he went through while in prison;”.

13.  At the request of the appellant, the Council adjourned the hearing for him to adduce supporting documents regarding his rehabilitation and his up-dated psychological and/or psychiatric condition.

14.  At the adjourned hearing on 24 May 2022, the appellant submitted further documents to the Council and was duly questioned. The further documents included a psychiatric report dated 15 November 2021 from Dr Chiu Siu Ning (“Dr Chiu”), a letter from the Social Welfare Department (“SWD”) dated 24 November 2021 acknowledging the Department’s referring the appellant to the department of Clinical Psychology, a memo from the department of Clinical Psychology dated 11 February 2021 of an interview with the appellant on 5 February 2021 and letters from his colleagues and friends.

15.  At the conclusion of the hearing, the Council found him guilty as charged and ordered his removal from the Register with no specified period. These are the reasons given in the decision:

“20. Criminal offence committed by a nurse in the course of performing nursing duties causes the Council particular concern. An offence of this nature damages the confidence the public has in the nursing profession and it calls upon this Council to ensure nurses to be entered on the roll and register of the nurses practising in Hong Kong are of good character, reliable and worthy of the trust bestowed upon the profession of nursing.

21. The Council owes a duty to the public and to safeguard the confidence the public has of the profession. The public is left to the care of a nurse when he/she is most vulnerable. Nurses are required to be always on the alert and able to keep their emotions in checks.

22. The Council is of the view that the offences, the circumstances of the offence, and the steps and measures [the appellant] took for his rehabilitation after his release from prison and having given full consideration and affording all benefit to [the appellant] contained in the oral submission and the documents submitted by [the appellant], the Council orders that pursuant to Section 17(1)(i) of the Ordinance, [the appellant] is to be removed from the Register of Nurses.”

The legal principles

16.  We were referred by both sides to relevant authorities on the approach of the appeal court in an appeal against the sentence imposed by a professional disciplinary body.

17.  As explained by Lord Millett in Ghosh v General Medical Council [2001] 1 WLR 1915 at §34[1]:

“It is true that the Board’s powers of intervention may be circumscribed by the circumstances in which they are invoked, particularly in the case of appeals against sentence. But their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past. In Evans v General Medical Council (unrep., The Times, 19 November 1984) the Board said:

‘The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled. It has been said time and again that a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct, and that the Board will be very slow to interfere with the exercise of the discretion of such a committee …

The committee are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards.’

For these reasons the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee’s judgment more than is warranted by the circumstances. The council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the committee for reconsideration.” (Emphasis supplied.)

18.  In Lau Koon Leung v Medical Council of Hong Kong at §75(2), Yuen JA cautioned against treating penalties imposed by professional bodies on their members as tantamount to sentences given by criminal courts where guidelines and tariffs were laid down for particular kinds of offences. It was emphasised that the professional body “must enjoy a margin of discretion when it comes to deciding what it considers necessary at the time to maintain professional standards”.

19.  Lam VP (as Lam PJ then was) made similar observations when he explained the approach of the appeal court in deciding whether the penalty imposed by a professional disciplinary body is excessive or disproportionate in Registrar of the Hong Kong Institute of Certified Public Accountants v Leung Kam Man Victor (CACV 37/2016, [2017] HKEC 149) at §§13 to 16[2]:

“13. Thus, though the court can examine a penalty imposed by a disciplinary tribunal or committee to see if it is excessive or disproportionate, it would accord an appropriate measure of respect to the judgment of such tribunal or committee.

14. What does this mean in practice? The court acknowledges that a disciplinary tribunal or committee has to exercise their judgment on penalty by reference to the facts of that particular case, their assessment of the seriousness of the findings and the measures that need to be imposed to reflect the same and to maintain the standard of the profession. In these matters, in particular the latter two aspects, professional judgment and expertise are highly germane. In line with the approach recently confirmed by the Court of Final Appeal in Sin Chung Yin Ronald v The Dental Council of Hong Kong FACV 6 of 2016, 4 November 2016, the court will give due weight to such professional judgment and expertise.

15. The court further accepts that there could be variations in sanctions imposed by different members of the committee. It is not at all surprising that committees differently constituted could reasonably take different views on the seriousness of a contravention of a particular rule (especially viewed against different sets of factual background) and on the measures that should be imposed by way of sanctions. So long as the sanction imposed falls within the reasonable range of options, the court will not intervene. In short, the disciplinary tribunal or committee has a margin of discretion in deciding the appropriate sanction to maintain the standards of the profession, see Lau Koon Leung v Medical Council of Hong Kong, supra at [75(2)].

16. It follows that the mere citation of other decisions in which the sanctions appear to be lighter cannot be a valid ground of appeal. …” (Emphasis supplied.)

20.  The observations of Lam VP were adopted in the judgment of Chu JA (as Chu VP then was) in Wong Cheuk Yi (Dr) v Medical Council of Hong Kong [2020] 1 HKLRD 289 at §46. Chu JA further said at §50:

“… when deciding on penalties, the Council not only look at the interests of Dr Wong and the effect and consequences of the penalty on him, but also have to bear in mind their wider duties as a professional disciplinary body, which include ensuring the penalty reflects the gravity of the occasion, maintaining the reputation of the medical profession and preserving the confidence of the public in the profession: see R (Eden) v General Medical Council [2008] EWHC 1905 (Admin) at [50]. On these matters, members of the Council are best equipped to decide what is the right penalty to impose, and the court’s interference is only justified if the penalty imposed can be said to be clearly wrong and unwarranted: see David Jon Rodgers v General Medical Council [1984] UKPC 46 (19 November 1984) at pp.9-10.” (Emphasis supplied.)

21.  Quite clearly, the guiding principles in the above cases set a high threshold for an appeal against sentence imposed by a professional disciplinary tribunal.

Whether removal from the Register for an unspecified period is manifestly excessive and disproportionate

22.  Sections 17(1)(i) to (iv) of the NRO set out four kinds of orders the Council may make in its discretion in the exercise of its disciplinary powers. In descending order of severity, they are: removal of the name of the registered nurse or enrolled nurse from the register or roll or any part thereof without specifying a period; removal from the register or roll or any part thereof for a specified period; a reprimand; postponement of judgment on the case for any period not exceeding two years.

23.  Ms Abigail Wong, who appeared for the Council in opposing this appeal[3], submitted that this appeal is “somewhat puzzling”, given that there exists the avenue of applying for restoration to the Register after removal, pursuant to section 21(3)(a) of the NRO. She disagreed with the appellant’s contention that removal indefinitely without a specified period would amount to a “life sentence”. Section 21(3)(a) provides that “any registered nurse whose name is removed from the register or any part thereof … may apply to the Council for the restoration of his name to the register or to such part thereof”. Section 21(4) provides that the Council may “in its absolute discretion, and after such inquiry and subject to such conditions as it may consider expedient”, allow or reject the application for restoration. It further provides that if the removal is for a specified period only, no fee shall be payable upon the restoration of the name upon the expiration of such period.

24.  Ms Wong further submitted that the appellant’s apparent expectation that he would, with confidence, be restored to the Register upon the expiration of the removal period (had this been specified) is misplaced. She drew our attention to similar provisions for the restoration of a doctor under section 25(3) of the Medical Registration Ordinance, Cap 161 (“MRO”), where the name has been removed from the General Register indefinitely or for a specified period pursuant to section 21(1)(i) or (ii). It was held by the Court of Final Appeal in Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 that removal of a doctor for a specified period does not warrant an automatic entitlement to restoration.

25.  Ms Wong even suggested that a removal order with no specified period would be more convenient to the appellant, as he could apply for restoration at any time. She also contended that according to the Notes accompanying the application for restoration under the NRO, there is nothing to indicate that an indefinite period of removal (as opposed to a specified period) would somehow hamper the chances of an application succeeding.

26.  We do not agree with Ms Wong that the appellant should have no valid complaint about removal indefinitely merely because in theory he could apply to be restored to the Register at any time. On any view, indefinite removal is far more severe compared to removal for a specified period, and is meant for rare cases which warrant the severest form of sanction. Indefinite removal is meant to convey a clear message to the public that the gravity of the occasion calls for the severest sanction, and that this is warranted to maintain the standard of the nursing profession and to preserve public confidence. Removal indefinitely under section 17(1)(i) and for a specified period under section 17(1)(ii) clearly serve different purposes. It is the law’s tendency to construe each and every provision of a statute in such a way as to accord the same a due measure of real meaning and substance (Chow Siu Shek at 157E). Nor did it appear to be the Council’s thinking that indefinite removal could be imposed without any or any sufficient regard to the appropriateness of this sanction in a particular situation merely because the defendant could apply for restoration to the Register at any time. Further, we do not think it could be gainsaid that the prospects of success in applying for restoration on the expiry of a removal period should be higher compared to removal for an indefinite period, granted that there is no automatic entitlement to restoration on the expiry of the term for removal.

27.  The question remains whether the severest form of punishment is unduly harsh and manifestly excessive in this instance. As noted in Chow Siu Shek at 152G and 157F, the removal or striking off of doctors is usually for a specified period and cases of doctors being struck off indefinitely are very rare indeed. As for registered nurses, according to the researches of both sides, there was only one instance of removal indefinitely in the past 18 years[4]. That case did not involve sexual misconduct. The nurse was convicted of manslaughter for administering a muscle relaxant drug and a sedative drug to his girl friend by injection. He had stolen the drugs from the hospital and had administered drugs to this girl friend at her request on ten previous occasions, although the fatal incident was the first time the muscle relaxant drug was administered. The Council rightly took a most serious view of the defendant’s pre-meditated behaviour which was not one-off, not to mention his breach of trust and gross negligence.

28.  The Council in this instance had inquired closely into the circumstances, reasons and motivation of the acts of indecent assault committed by the appellant. The acts were a serious breach of trust, committed when the patient was in a most vulnerable state. Our attention was drawn by Ms Wong to various provisions in the Code of Ethics and Professional Conduct for Nurses in Hong Kong[5] that he would appear to have contravened. His sexual misconduct, although shocking, bizarre and predatory, is not in the top range of seriousness as far as sexual offences go; nor is it in the bracket of serious misconduct for which medical and health care professionals had been removed indefinitely. There is no evidence to suggest that he was suffering from any sexually perverted disorder and there is no need for him to consult a sex therapist[6]. The offences were committed against the background of major stress due to his wife’s extra-marital affair. He believed he was acting out impulsively at the time[7]. He claimed that he had derived no pleasure out of the acts and was very frightened afterwards[8]. Even though he was charged with two counts of indecent assault, the misconduct was ‘one-off’ in the sense in that the acts were very close in time[9] such that part of his prison term was ordered to run concurrently.

29.  It is apparent from the inquiries conducted at the two hearings that the Council was rightly concerned about the treatment and prospects of rehabilitation of the appellant before and after imprisonment, as it would be clearly undesirable to specify a period of removal if there is uncertainty that the appellant would probably be suitable to resume practice at the end of that period, even though his application for restoration on the expiry of the removal period might still be rejected for good reason. Mr Wilson Tam, who appeared for him on appeal, took this court through the relevant documents and the transcript of proceedings. The relevant process may be summarised as follows.

30.  Before the appellant was sentenced on 17 December 2019, he had consulted these professionals:

(1)  Not long after he committed the offences, on 22 May 2019[10], he consulted a psychiatrist Dr Chan Chung Mau, who had prescribed medication for his treatment. He consulted Dr Chan three to four times. Owing to the expenses, at his request Dr Chan referred him to the consultant psychiatrist in West Kowloon Psychiatric Centre so he could continue his treatment by medication, which he took until he was sentenced in mid-December 2019. For the referral, Dr Chan provided a note dated 15 August 2019 giving a diagnosis that the appellant was suffering from Anxiety Disorder.

(2)  The appellant also consulted another psychiatrist, Dr Chiu, four times from mid-October 2019 to 10 December 2019. Dr Chiu provided a report dated 11 December 2019 for submission to the court for the purpose of sentencing. Dr Chiu did not think the appellant was suffering from Anxiety Disorder, as the anxiety feeling was occasional and did not dominate the clinical picture. He diagnosed the appellant as suffering from Dysthymia (Persistent Depressive Disorder), based on the fact that he was suffering from symptoms like depressed mood, sleep disturbance and impaired concentration. Dr Chiu opined that Dysthymia was precipitated and maintained by his marital discord and as this is a milder form of Depression and did not cause significant functional impairment, the appellant had overlooked the problem. Dr Chiu considered that at the material time, the mood problem the appellant was suffering from had weakened his impulse-control ability and that he acted out irrationally as his suppressed emotions had reached a boiling point[11]. The appellant needed both pharmacological and psychological treatment. Dr Chiu started the appellant on psychiatric medications (of not less than 12 months) and advised him to go through a course of psychotherapy with a clinical psychologist (which may take up to 12 sessions) to enhance his impulse-control ability and strengthen his communication of emotion with his wife[12].

31.  During his imprisonment from 17 December 2019 to 27 May 2020:

(1)  The appellant was arranged by the Correctional Services Department (“CSD”) to serve the first two months in Siu Lam Psychiatric Centre as he was convicted and sentenced for a sexual offence. During his stay, he was seen by the social worker and the clinical psychologist who offered him psychological therapy. The treatment was in the form of a one-month group treatment tailored made for sex offenders[13].

(2)  After a month or so, he was transferred to Tung Tau Correctional Institution as it was found unnecessary for him to receive further treatment and he was assessed to have low risk of re-offending[14].

(3)  In around March or April 2020, CSD transferred him back to Siu Lam Psychiatric Centre, not because he needed treatment but because he was considered able to provide daily care services to some of the inmates owing to his nursing background. He stayed there for two months until his release from prison[15], and was referred by the Clinical Psychological Services of CSD to SWD[16].

32.  After his release from prison:

(1)  On 28 May 2020, he started to receive the service of SWD at the Tsing Yi (South) Integrated Family Service Centre[17]. Upon discussions with the appellant, his case was referred to the department of Clinical Psychology of SWD for follow-up actions on 12 August 2020. Given that he had no further service need, his case was agreed to be closed in the Integrated Family Service Centre on 1 March 2021[18].

(2)  On 5 February 2021, he was interviewed by the clinical psychologist of SWD, who provided a memo to the Integrated Family Service Centre dated 11 February 2021. The findings indicated that he has “gradually settled in his life”, is able to “tackle the issues facing, including the marital problem”, “has good insight and the ability to reflect on his needs and issues”, “has the cognitive flexibility to manage his emotion” and “is now aware of the need to manage his emotion closely before reaching the break point, making himself susceptible to the same problem behaviour”. Given the assessment findings, and “there is no indication that [he] has a high risk of reoffending or he is harboured with significant signs of mood problem or emotional dysregulation”, it was recommended that he should keep monitoring his emotion and continue to reach out for social support and commit himself in exercises for stress management. Follow-up appointment would not be rendered, as the appellant did not deem it necessary[19].

(3)  He was interviewed by Dr Chiu on 13 November 2021. Dr Chiu’s 2^nd Report was provided for submission to the Council at the adjourned hearing. Dr Chiu considered that although the appellant did not receive a full course of drug treatment for his Dysthymia, he did receive appropriate psychological treatment during his stay in Siu Lam Psychiatric Centre. Dr Chiu detected no signs of Dysthymia in November 2021 and opined that the remission from Dysthymia came as a result of a number of factors[20]: the marital discord has come to an end in that he was in the process of divorcing his wife, custody would be granted to his wife and he has come to terms with this change; the psychiatric medications he took did help to eradicate the active symptoms of Dysthymia and although he missed the maintenance phase of drug treatment, the illness has not recurred because of the removal of significant stressors; the psychological intervention received in Siu Lam Psychiatric Centre had enhanced his insight into his emotional problem and strengthened his impulse-control capacity. Dr Chiu did not consider it necessary for him to have further psychiatric treatment[21].

33.  Mr Tam submitted that the above reports should have sufficiently dispelled any doubts the Council might have that the appellant has not fully recovered from his illness and might not be mentally fit to continue with his nursing duties in the foreseeable future. In the appellant’s addresses to the Council, he had frankly admitted his wrongdoing and expressed his apology and remorse without hesitation and at length, showing his self-reflection and the insight he had gained. He also outlined his current and future plans of continuing rehabilitation. The Council should be reassured there would be little risk of re-offending[22].

34.  Ms Wong urged the court to take a contrary view. She submitted that despite granting an adjournment for the appellant to adduce evidence on his treatment and rehabilitation, it would appear from the persistent questioning by various Council members at the adjourned hearing[23] that they were still extremely concerned about the extent of his rehabilitation and the risk of re-offending. There is inconsistency between the appellant’s claims that he has been fully rehabilitated and is able to check his emotions and his assertion that his rehabilitation is ongoing and continuing to the present day. She contended there are these good reasons for the Council not to take Dr Chiu’s 2^nd Report at face value and to query whether the appellant has been fully rehabilitated:

(1)  According to Dr Chiu’s 1^st Report, he should be treated with psychiatric medication for not less than 12 months and was advised to go through a course of psychotherapy with a clinical psychologist that may last up to 12 months. The management plan recommended by Dr Chiu did not go according to plan as he was sent to prison two months after he started his treatment under Dr Chiu.

(2)  No psychiatrist was specifically assigned to follow up on him when he was in prison[24]. He did not seek treatment from a psychiatrist after his release from prison on 27 May 2020. He only saw Dr Chiu in November 2021 for the purpose of obtaining a psychiatric report to submit to the Council.

(3)  The follow-up services provided by the social worker at the Tsing Yi (South) Integrated Family Service Centre were discussions concerning his family and economic circumstances.

(4)  He only had one consultation with a clinical psychologist of the SWD after his release from prison. The clinical psychologist mentioned in the memo that follow-up appointment would not be rendered as the appellant did not deem it necessary, this is inconsistent with the appellant’s assertion before the Council there was a consensus that further appointment was not necessary[25].

(5)  Minimal weight should be attached to the opinion of Dr Chiu that the appellant had received effective and appropriate psychological treatment in Siu Lam Psychiatric Centre because Dr Chiu has not seen the medical reports or notes relating to the appellant’s treatment there.

(6)  Given that Dr Chiu’s 2^nd Report was mainly for the purpose of stating the appellant’s mental well-being so that he can renew his nursing licence, it is questionable whether this report was for the purpose of providing fair and objective evidence on his psychiatric conditions.

35.  We accept that it is apparent from the manner of the questioning by Council members that they were concerned whether the appellant has made a full recovery as he had asserted. The Council has not, however, indicated in its decision that it has rejected the opinion of Dr Chiu that he detected no signs of Dysthymia in November 2021 and did not consider it necessary for the appellant to have further psychiatric treatment. As the quotation of §22 of the decision indicates, the meaning of the first part of that paragraph is incomplete, so the reader is left wondering what is the view of the Council regarding, inter alia, “the steps and measures [the appellant] took for his rehabilitation after his release from prison”. It is all the more puzzling as §22 continues to say that the Council “[has] given full consideration and affording all benefit to [the appellant] contained in the oral submission and the documents submitted by [the appellant]”. If the Council had indeed “given full consideration and [afforded] all benefit” to the oral submission and documents, one is left at a loss as to what the Council made of the detailed responses and self-reflection given by the appellant to the searching inquiries at the two hearings.

36.  Ms Wong contended that it should be deduced from the sanction imposed of indefinite removal that the Council must have given little or no weight to Dr Chiu’s 2^nd Report and could not have been satisfied that the appellant has no or little risk of re-offending. We do not think it is proper to work backwards as it begs the question whether the severest sanction is justifiable in the first place. Nor are we persuaded that the reasons advanced by Ms Wong for not accepting Dr Chiu’s 2^nd Report ought to be preferred to the evidence to the contrary that Mr Tam took us through as related earlier. We note that Dr Chiu has working experience in psychiatry of 31 years and has provided expert evidence to the courts over the years without any negative comments whilst acting as expert witness[26]. His expert opinion should not be brushed aside, nor should it be lightly suggested that his report was provided to give a favourable opinion for the appellant without regard to fair and objective evidence on the appellant’s psychiatric conditions, as may have been contended by Ms Wong.

37.  We do not think there is any real inconsistency in the appellant’s position that he has been fully rehabilitated as last seen by Dr Chiu in November 2021 and the recommendation made by the SWD clinical psychologist in February 2021 that he should keep monitoring his emotion and continue to reach out for social support and commit himself in exercises for stress management.

38.  Approaching the Council’s decision on the basis that it has not rejected Dr Chiu’s opinion, and taking into account all the matters urged upon us, including those mentioned by the Council in §§20 and 21 of its decision, we are satisfied that removal for an indefinite period is manifestly excessive and disproportionate in all the circumstances.

Whether the sentence is out of tune with other previous decisions of the Council

39.  Mr Tam cited three cases of sexual misconduct committed by nurses to demonstrate that the sanction in this instance is out of tune with previous decisions of the Council.

40.  In Ng Hon-keung v Nursing Council of Hong Kong[27], the registered nurse was convicted after trial of one count of indecent assault for which he was sentenced to eight months’ imprisonment. Whilst performing nursing duties, he indecently assaulted a female patient by placing a stethoscope into her clothes with his hand and pressing the stethoscope onto her breasts. His appeal against the criminal conviction was dismissed by the Court of First Instance[28]. The Council considered the mitigating factors and the consistent favourable comments on his professional performance and ordered his name be removed from the Register for one year.

41.  Lui Man-wai v Nursing Council of Hong Kong^[29] was also a case of indecent assault. The enrolled nurse was convicted on his own plea of one count of indecent assault. A female patient was lying on a bed outside the scan room of the hospital waiting to be transferred back to the ward. The defendant walked past and touched her breast twice. The incident was captured by the CCTV. He was sentenced to six weeks’ imprisonment. Before the Council, the defendant claimed that he touched the patient’s breast by accident and had pleaded guilty in the magistrate’s court for convenience. Having considered the submissions in mitigation, and taking note that the marital relationship of the defendant had improved and his chance of re-offending was slim, the Council ordered his name be removed from the roll for two months, with a recommendation that he should maintain close relationship with his support system and provide evidence of this in his application for restoration on the roll.

42.  In Liu Wing-wang v Nursing Council of Hong Kong[30], the registered nurse was convicted of one charge of unlawful sexual intercourse with a girl under 16. The Council ordered the defendant be reprimanded. The facts alleged and any mitigating circumstances are not disclosed in the council paper of the disciplinary inquiry provided to this court. We do not consider this case helpful due to the lack of sufficient information.

43.  Mr Tam submitted there is disparity in the sanction imposed in this instance compared to previous cases of indecent assault in which the removal orders were for a specified period. Ms Wong contended that the misconduct of the appellant is far more serious and intrusive and the cases cited are plainly distinguishable.

44.  We accept that the acts of indecent assault committed by the appellant are clearly more serious than those committed by the two nurses in which removal orders for one year and two months respectively were made. Notwithstanding this, these cases do show that for some cases of indecent assault, albeit committed in respect of a patient (in one instance while the patient was in nurse’s care), the Council considered it appropriate to order removal for specified periods, the duration of which varied depending on the gravity of the act and the mitigating factors. Where the appropriate sanction is removal for a period, these cases serve as useful points of reference as regards the specified period that should be imposed, and recommendations on measures that should be taken by the defendant for continuing his rehabilitation during the removal period.

Conclusion

45.  For all the above reasons, we are satisfied that the high threshold for an appeal against sentence imposed by a professional disciplinary body is met in this instance. Despite according a margin of discretion to the Council in deciding the appropriate sanction to maintain the standards of the profession, the removal order for an indefinite period is manifestly excessive and disproportionate in this instance, and clearly falls outside the reasonable range of options that may be imposed by the Council. We therefore allow this appeal and set aside the sanction of the Council.

Remission to the Council for determination of the specified period

46.  The remaining question is whether this court should determine the appropriate length of the removal period for the appellant or remit to the Council to determine. We indicated to the parties our inclination of remitting to the Council and heard submissions if an order of remission should be made.

47.  After a short adjournment for the parties to consider their stance, Ms Wong raised doubts if the Court of Appeal has jurisdiction to remit to the Council, drawing our attention to section 22(1) of the NRO which merely provides that “the Court of Appeal may affirm, vary or reverse the decision of the order … and may exercise any power which the Council might have exercised” and there is no mention of any power to remit, unlike section 26(1A) of the MRO[31]. She asked for an opportunity to research this point. We therefore gave directions for both parties to lodge further submissions on this point after the hearing.

48.  In her supplemental submissions after the hearing, Ms Wong accepted that the Court of Appeal does have jurisdiction to remit to the Council, in view of the decision of the Court of Final Appeal in Sin Chung Yin Ronald v Dental Council of Hong Kong (2016) 19 HKCFAR 528. That case was concerned with a similar provision in section 23(1) of the Dentists Registration Ordinance, Cap 156, which does not expressly confer on the Court of Appeal a power to remit to the Dental Council. It was held that express power to remit is unnecessary, in light of Order 59 rule 10(4) of the Rules of the High Court, which empowers the court to “make any order, on such terms as the Court thinks just, to ensure the determination on the merits of the real question in controversy between the parties”. These words are apt to cover a situation where the Court of Appeal considers a remitter appropriate consequential upon its disposal of the appeal. There is also implied power to make orders reasonably required for the effective exercise of the statutory jurisdiction conferred upon the Court of Appeal, mirroring the power provided for in Order 59 rule 10(4)[32].

49.  Ms Wong went on to contend that notwithstanding there is jurisdiction to remit, we should not exercise our discretion to do so and this turned out to be her main submission. As pointed out in Mr Tam’s reply submission, the issue of discretion is not covered by the permission granted to lodge further submissions. Counsel should keep to the scope of the submissions allowed to be made after a hearing. If counsel sees fit to make submissions which stray beyond the scope of the leave granted, it is inappropriate to do so without alerting the court and the other party to this and seeking leave from the court.

50.  Having considered Mr Tam’s response, we will entertain Ms Wong’s submissions on discretion notwithstanding the absence of leave.

51.  Her reasons why we should not remit to the Council are as follows:

(1)  These proceedings have been hanging over the head of the appellant for a long time. If the matter is remitted to the Council, the Council will have to consider the entirety of the case again, and this may prolong the proceedings and increase the appellant’s legal costs.

(2)  One of the seven members who presided over the appellant’s inquiry “is retiring”. Under section 4(2) of the NRO, a quorum of seven members is required for any meeting of the Council. A newly constituted panel of the Council is required to rehear the matter.

(3)  Given the concerns of this court that the decision of the Council “lacked any or proper reasons”, if the case is to be remitted to the panel made up of substantially the same members, there is the risk of ex post facto reasoning by the Council seeking to rectify or supplement its reasons with reconstructions of proper reasons, rather than the unexpressed actual reasons for the decision.

(4)  In the absence of any new materials, the Council is not necessarily in a more advantageous position vis-à-vis the Court of Appeal to reconsider the appropriate sanction. The Court of Appeal has access to the same materials and sentencing authorities as the Council.

(5)  Section 26(6) of MRO expressly provides that where a new inquiry is held as a result of a remitter to a new inquiry panel (under section 26(1A)(b)(ii)), the validity of the proceedings is not to be called into question only because a member of the old panel who was present at the former inquiry is not present at the new inquiry, or a member of the new panel who is present at the new inquiry was not present at the former inquiry. There is no such provision in the NRO.

52.  We do not agree with Ms Wong.

53.  The remitter is for a narrow purpose: it is simply to consider the appropriate term of the removal period in accordance with our judgment. The Council is not required to conduct an inquiry all over again, nor is it asked to explain, rectify or supplement its reasons in its previous decision. The Council is not given a second bite of the cherry. There is no question of attempting to engage in ex post facto reasoning.

54.  The composition of the panel should, ideally, remain the same. If this is not possible, the panel members should be largely unaltered.

55.  We find the submission that the Council is not necessarily in a more advantageous position vis-à-vis the Court of Appeal to reconsider the appropriate sanction somewhat surprising. This is not consistent with Ms Wong’s earlier emphasis in the authorities cited to us that the Council are “the best possible people for weighing the seriousness of professional misconduct” and “members of the Council are best equipped to decide what is the right penalty to impose”.

56.  The absence of a provision in the NRO similar to section 26(6) of the MRO is immaterial. Section 26(6) is premised on section 26(1A), which has no equivalent in the NRO.

57.  In this instance, we think it is more appropriate to exercise our discretion to remit to the Council to consider the appropriate length of the removal period. The Council had the benefit of receiving evidence from the appellant first hand over two hearings of some length and had the fullest opportunity of assessing him against the references he provided of his character and professional performances. More importantly, it is the professional body charged with the duties of judging what measures are required from time to time to provide adequate protection to the public, and to maintain professional standards and public confidence in the profession. This calls for the expertise and professional judgment of the Council. We are mindful that the appeal court does not have the same advantage and capacity enjoyed by the Council in this kind of situation.

58.  Given that the disciplinary matter has been hanging over the head of the appellant since 2021, we have no reason to think that the Council would not exercise its best endeavours to bring the matter to an early conclusion.

Orders and costs

59.  We therefore allow the appeal, set aside the sanction of the Council and substitute this with an order that the appellant’s name be removed from the Register for a specific period to run from the date of this judgment. We remit the case to the Council to consider, in accordance with this judgment, the appropriate length of the period of removal of the appellant from the Register.

60.  In the event any member of the Council who had presided at the disciplinary inquiry of the appellant has ceased to hold office, he or she is to be replaced by another member of the Council appointed by the chairman of the Council to form a quorum of seven members at the meeting convened to consider the case remitted by this court.

61.  We have heard submissions on costs. As there is no dispute that costs should follow the event, we make an order that the Council should pay the costs of the appellant of this appeal.

62.  It is appropriate to assess costs summarily. We direct the appellant to lodge a statement of costs for this purpose within seven days of the handing down of this judgment with leave to the Council to respond within seven days thereafter.