HIN LIN YEE v. THE MEDICAL COUNCIL OF HONG KONG

CACV 57/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 57 OF 2011

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL

OF HONG KONG MADE ON 9TH MARCH 2011)

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BETWEEN

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JUDGMENT

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Hon Cheung CJHC:

1.  I agree with the judgment of the Vice President and the order he proposes.

Hon Tang VP:

Introduction

2.  Dr Hin was charged before the Medical Council under section 21(1) of the Medical Registration Ordinance (Cap. 161) ("the Ordinance") as follows:

"He, being a registered medical practitioner:

(a)   was convicted at the Tsuen Wan Magistrates’ Courts on 3 May 2008 of 4 counts of 'selling drug intended for use by man but unfit for that purpose', which is an offence punishable with imprisonment, contrary to section 54(1) and 150 of and the Ninth Schedule of Public Health and Municipal Services Ordinance, Chapter 132, Laws of Hong Kong;

(b)   was convicted at the Tsuen Wan Magistrates’ Courts on 3 May 2008 of 1 count of 'illegal sale of unregistered pharmaceutical products', which is an offence punishable with imprisonment, contrary to regulations 36(1) and 40 of the Pharmacy and Poisons Regulations made under the Pharmacy and Poisons Ordinance, Chapter 138, Laws of Hong Kong."  ("the charges")

3.  Charge (a) relates to the dispensing of medicines which were unfit for human consumption in that they contained varying concentration of isopropyl alcohol (i.e. 11%, 43%, 1.1% and 43% v/v respectively).  Charge (b) relates to one count of illegal sale of unregistered pharmaceutical products[1]. There was no dispute that the medicine sold was not registered as a pharmaceutical product with the Pharmacy and Poisons Board. 

4.  Under section 21(1), if the Medical Council is satisfied that any registered medical practitioner –

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

......

the Council may, in its discretion-

(i)      order the name of the registered medical practitioner to be removed from the General Register; or

(ii)     order the name of the registered medical practitioner to be removed from the General Register for such period as it may think fit; or

(iii)    order the registered medical practitioner to be reprimanded; or

……

(v)     order that a warning letter be served on the registered medical practitioner;"

5.  On the basis of such charges the Medical Council ordered:

"(a)    In respect of charge (a), the Defendant’s name be removed from the General Register for a period of 4 months.

(b)     In respect of charge (b), the Defendant’s name be removed from the General Register for a period of 10 months.

(c)     Having regard to the totality principle, we further order that 2 months of the removal order in respect of charge (a) be served concurrently with the removal order in respect of charge (b), making a total of removal for 12 months."

Criminal Conviction

6.  Dr Hin was prosecuted in the Magistrates' Court where he was convicted as stated in the charges.  He appealed first to the Court of First Instance where the conviction was upheld.  His further appeal to the Court of Final Appeal was dismissed.  I will take the facts from the headnote of the report of his case in the Court of Final Appeal Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142:

"D1, a medical practitioner, and D2, his clinic assistant, were convicted of selling a drug intended for use by man but unfit for that purpose, contrary to s.54(1) of the Public Health and Municipal Services Ordinance (Cap.132) (the Ordinance).  D1 was also convicted of possessing for sale a drug which had not been registered by the manufacturer with the Pharmacies and Poisons Board under reg.36(1) of the Pharmacy and Poisons Regulations (Cap.138A, Sub.Leg.) (the Regulations).  On four occasions, D1 had prescribed contaminated drugs to children.  D2 filled D1's prescription, transferred the drug to the patients and collected payment.  The dispensing process at D1's clinic involved the drug being decanted from a 3.6 L bottle to a 0.5 L bottle and then to 60 ml containers to be dispensed, as prescribed, to patients.  Ds' case was that they were unaware of the contamination which they claimed must have taken place before the drug was delivered to them by a long-standing trusted supplier [Christo] and that they honestly and reasonably believed the medicine was fit for its purpose when sold to patients.  No reliance was placed either at the trial or on appeal on the statutory defences under ss.70 and 71 of the Ordinance.  The prosecution's case was that the contaminant had been introduced into the decanting process at the clinic and that the 3.6 L bottles of drug were not supplied by [Christo]. Ds appealed to the Court of Final Appeal. …"

7.  It is sufficient to note for the present purpose that the Court of Final Appeal held that the only defences available to the charge under section 54(1) (the subject of charge (a)):

"… were the express defences contained in ss.70 and 71.  Section 70 gave a defendant a defence if he or she proved that the contravention was due to the act or default of some identified third person. Section 71 gave a defendant a defence relating to a written warranty in the purchase of the article or substance from a third person that it could be lawfully sold.  The legislative intent plainly was to regard an honest and reasonable belief as insufficient."  (Headnote 7)

8.  Also that, in respect of the charge under regulation 36(1) ("charge (b)"), the only available defence was provided by regulation 36(1C) which was a defence based on reasonable diligence.

9.  The Court of Final Appeal went on to hold that on the facts, Dr Hin could not rely on these sections 70, 71 defences, as he had not come close to proving that: (a) Christo had supplied the bottle; and (b) the contaminant was not introduced at the clinic but on Christo's watch.  Nor could he show that he had exercised reasonable diligence in regard to charge (b).

This Appeal

10.  Dr Hin's appeal to this court is concerned solely with penalty.  It is not disputed, nor could it be, that he had been duly convicted, such that he came within section 21(1)(a).

11.  The issue here is how the Medical Council should approach the question of sentence.

12.  The obvious answer is that under section 21(1) penalty was in the discretion of the Medical Council.  The possible sentences are to be found in section 21(1) and I have set out some of them in para. 4 above.  I believe in order to exercise its discretion on the appropriate punishment the Medical Council was entitled to form a view on the nature and gravity of the relevant charges.

13.  As the following paragraphs in the Medical Council's decision show, that was what the Medical Council has done:

"Sentencing

10.   The Defendant has a clear record.

11.   We also give credit to the Defendant for not contesting the disciplinary charges, in line with our published policy of giving credit for honest admission and cooperation in the inquiry. However, the extent of the credit must be commensurate with the fact that there is no realistic prospect for the Defendant to dispute the disciplinary charges, given that (i) the criminal convictions have been upheld by the Court of Final Appeal; (ii) evidence of the convictions is indisputable, and (iii) the disciplinary charges can be proved merely by proving that the criminal convictions were in respect of the Defendant.

12.   Defence Counsel asked us to accept as mitigation that the contaminated drugs containing isopropyl alcohol could have come from the supplier, and that the Defendant had no reason to suspect that the drug was contaminated by isopropyl alcohol. For two reasons, we cannot accept such mitigation.

13.   Firstly, in deciding whether a retrial should be ordered, the Court of Final Appeal has clearly ruled out such possibility. We are bound by, and must respect, such ruling. Constitutionally, no one has the authority to challenge the ruling of the Court of Final Appeal, or seek to reopen these issues through the back door by arguing before the Medical Council that the possibility exists.

14.   Secondly, even assuming that the Court of Final Appeal had not made such ruling, a number of factors should have put the Defendant on question and to take further action to verify the propriety of the drugs. The factors include, but are not limited to, the discrepancy between the labels and the invoices, the lack of a registration number on the labels, and the difference between the manufacturer’s labels and the actual labels on the bottles.

……

16.   Doctors in Hong Kong are given the legal right to dispense medicines.  Corresponding to that right there is an onerous duty to ensure that the medicines are dispensed properly and safely.  It is a professional duty of all doctors to take necessary measures to ensure that the medicines are dispensed strictly in accordance with the prescription, that the medicines are free from contaminants, and that only medicines registered with the Pharmacy and Poisons Board are dispensed.  Failure to discharge this professional duty is a serious matter, as it can have potentially serious and sometimes fatal consequences to the patient.  In any case, it is not difficult for a doctor exercising reasonable care to discharge this duty, as there are easy and reliable avenues for verifying whether a drug has been registered.  On the other hand, if a doctor follows the 'Good Dispensing Practice Manual' issued by the Hong Kong Medical Association as early as July 2005, the risk of contamination of dispensed drugs is minimized.

17.   We take note of the remarks of the Court of First Instance that there is no evidence that the Defendant deliberately adulterated the medicines, and that the adulteration did not cause serious symptoms to the 4 patients.  We agree. How the contamination occurred remains a mystery, and we shall not speculate. The fact is that the contamination occurred at the Defendant's clinic.

18.   The purpose of our disciplinary proceedings is not to punish the Defendant, but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession.  Our concern is that the Defendant had not discharged his professional duty to ensure proper and safe dispensing of drugs.

19.   As to the unregistered drug found in the possession of the Defendant, the Defendant simply had not taken the necessary efforts to verify the situation despite the factors putting him on alert."

14.  Mr Gerard McCoy SC, appearing for Dr Hin, submitted that under section 21(1), the Medical Council was bound to consider for the purpose of the appropriate sentence, the nature and gravity of the offences for which Dr Hin had been convicted.  He relied in particular on the following observation by Fullagar J in the High Court of Australia in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, which was concerned with the suitability of a barrister, who had been convicted of an offence of manslaughter, to practise as such:

"… It is stated in general terms by saying that the person in question is not a fit and proper person to be permitted to practise at the Bar. The next question is – at what facts is it proper to look in order to see whether that conclusion is established? The answer must surely be that we must look at every fact which can throw any light on that question. But, descending to particularity, is it the conviction that is the vital thing, unchallengeable and conclusive of the ultimate issue? Or must we look beyond the conviction, and endeavour to ascertain, as best we can on the material before us, the facts and circumstances of the particular case? To my mind, there can be only one answer to these questions. The conviction is not irrelevant: it is admissible prima facie evidence bearing on the ultimate issue, and may be regarded as carrying a degree of disgrace itself. But, in the first place, its weight may be seriously affected by circumstances attending it, and it must be permissible to look at the conduct of the trial. And, in the second place, it is on what the man did that the case must ultimately be decided, and we are bound to ascertain, so far as we can on the material available, the real facts of the case. It is only when we have done this that we can be in a position to characterise the conduct in question, and to see whether we are really justified in saying that a man is disqualified from practising his profession. …"

15.  Mr McCoy also relied on the following provisions in the Ordinance:

"21(3) Nothing in this section shall be deemed to require the Council to inquire into the question whether the registered medical practitioner was properly convicted but the Council may consider any record of the case in which such conviction was recorded and any other evidence which may be available and is relevant as showing the nature and gravity of the offence.

(4) In any inquiry under this section whether a person has been guilty of misconduct in any professional respect, any finding of fact which is shown to have been made in any matrimonial proceedings in a court of the Commonwealth having unlimited jurisdiction in civil matters, or on appeal from a decision in such proceedings, shall be conclusive evidence of the fact found."

16.  He drew attention to the fact that unlike section 21(4), section 21(3) does not provide that any finding of fact shall be conclusive evidence of the fact found.  Also that section 21(3) plainly provides that the Medical Council may consider "any other evidence which may be available and is relevant as showing the nature and gravity of the offence".

17.  Mr McCoy complained that the Medical Council had not exercised its own judgment on the nature or gravity of the charges but had merely followed the conclusion of the Court of Final Appeal.

18.  But the quotation (e.g. para. 14) from the Medical Council's decision shows it had formed an independent view of Dr Hin's culpability.

19.  Mr McCoy further argued that the Medical Council had only formed an independent view with regard to charge (b) but not to charge (a).  With respect, that is clearly not so.  See, for example, para. 13 quoted above which showed clearly otherwise.

20.  Of course, the Medical Council was also entitled to take into account what the Court of Final Appeal said on the subject, including the following observations:

"189.  Two factual assertions are central to the appellants’ case: (i) that the CM 10mg/5ml delivered in the 3.6-litre bottles from which the medicine prescribed originated were supplied by Christo; and (ii) that the contaminant was not introduced at the clinic but must have been introduced on Christo’s watch. Moreover, for the 1st appellant to rely on s. 71 on any retrial, he would have to produce an invoice issued by Christo covering the CM 10mg/5ml sold, in order to meet the requirement of a written warranty of fitness.

190.    The appellants do not come close to proving those matters.   First, as to whether the drug came from Christo:

(a)    Christo’s labels carry Christo’s name; are coloured red, white and green; and state the registration number for the drugs concerned. However, the labels on the four 3.6-litre bottles do not mention Christo; are white in colour; and state no registration number. 

(b)    Three invoices issued by Christo produced by the 1st appellant were dated 18 June 2005, 21 September 2005 and 9 November 2005 respectively.  Two were for four and one was for five 3.6-litre bottles of 'Antimine Forte syrup'.  The Magistrate found, based on the evidence, that such syrup was a pharmaceutical product registered by Christo containing Chloropheniramine at a concentration of 4mg/5ml.  An exhibit (Exh.P-27) consisting of a printout dated 6 September 2006 of an online search of the Department of Health’s list of Registered Pharmaceuticals additionally listed 'Antimine Syrup' (without the word "Forte") with a different registration number in Christo’s name at a concentration of 2.5mg/5ml. 

(c)    The Magistrate found that those three invoices do not relate to the four 3.6 litre bottles of CM 10mg/5ml from which the medicine sold was said to have originated.  That finding is well supported and eliminates reliance on section 71.  The invoices, referring to 'Antimine Forte Syrup' obviously do not match the labels on the four bottles which describe their contents as 'Chloropheniramine Maleate 10mg/5ml'.  As the existence of different registration numbers for the syrup at concentrations of 4mg/5ml and at 2.5mg/5ml indicate, the drug at a concentration of 10mg/5ml is for relevant purposes a different medicine.  Moreover, as the Magistrate found, the frequency of ordering indicated by the three invoices suggests a consumption rate of four or five 3.6 litre bottles every three months or so.  The last invoice was dated 9 November 2005 whereas the sales for which the appellants were charged occurred between 16 August 2006 and 4 September 2006, some eight months later.  The Magistrate’s inference that the drugs supplied under the three invoices would have been 'used up well before' the relevant sales is therefore justified. 

191.    It must follow that it cannot be shown that Christo was responsible for the contamination.  The evidence is in any case against such a conclusion.   It was formally admitted that there was no contaminant in any of the four 3.6 litre bottles of CM 10mg/5ml.  It was also found that there was no contaminant in the 500 ml vessel into which the CM 10mg/5ml was decanted to be used for filling the four small bottles provided to the patients.  Yet the four small bottles were found to contain 43%, 11%, 11% and 1% of the contaminant respectively. This evidence justifies the inference that the contamination occurred at the clinic and not further up the supply chain, removing any basis for a section 70 defence."

Other evidence

21.  Before the Medical Council, Dr Hin had supplied to the Medical Council copies of expert evidence which were tendered before the magistrate, and asked the Medical Council to conclude from such evidence that contamination had not occurred in Dr Hin's clinic. 

22.  Mr McCoy submitted that such expert evidence:

"… was not tested in the Court of Final Appeal or at the Magistracy Appeal.  The circumstantial evidence strongly suggested that the unregistered drug came from [Christo] and that the alcohol contaminant did not come from the alcohol in the Appellant's surgery.  There was no challenge to this evidence by the prosecution or any other expert at trial."

23.  But it is clear from the transcript at page 94 of the proceedings that the Medical Council was not impressed with such evidence.  Indeed counsel then appearing for Dr Hin before the Medical Council accepted that the expert evidence contradicted paras. 189 to 191 of the Court of Final Appeal decision quoted above.  See Transcript page 95.

Legal Adviser

24.  Although Mr McCoy accepted that under section 21(3) the Medical Council could take into account the decision of the Court of Final Appeal, he complained that the legal adviser had wrongly:

"… advised the council that the council must not act against the final determination by the Court of Final Appeal.  Now, there may be matters of obiter dictum, but if those matters are obiter ditum I think that it is for the council to decide whether or not they are in a position to act against it.  But as to matters which are ratio decidendi, they are all bound by it." (Transcript p.106)

25.  The entry in Words and Phrases Legally Defined (4^th ed.) under Ratio Decidendi reads:

"The enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent.  This underlying principle is called the ratio decidendi, namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision. (37 Halsbury's Laws of England (4th Edn) (Reissue) para 1237)

26.  Thus understood, I do not believe the legal adviser was wrong.

Bound by Court of Final Appeal

27.  Mr McCoy also criticized the Medical Council because it has said in para. 13 of its decision that they were bound by the fact that the Court of Final Appeal had ruled out the possibility that the contaminated drug came from the supplier or that Dr Hin had no reason to suspect that the drug was contaminated.

28.  The Medical Council is entitled under section 21(3) to:

"… consider any record … and any other evidence which may be available and is relevant …"  

29.  Of course, one would expect the Medical Council to give the utmost respect to any observation by the Court of Final Appeal.  And that in forming their own view they would consider the Court of Final Appeal or any court's view on the matter.  However, I agree with Mr McCoy that the Medical Council is not bound by the Court of Final Appeal's view of the evidence.  But as noted the Medical Council had also formed its independent view on the matter.

Grossly Excessive

30.  Lastly, Mr McCoy submitted that the sentence of 12 months is grossly excessive in all the circumstances.

31.  The Medical Council has given adequate and persuasive reasons for the sentences they imposed, I see no basis to interfere with their decision.

Disposition

32.  For these reasons, I would dismiss the appeal with costs.

Hon Fok JA:

33.  I agree.