DR LO SHING KEI v. MEDICAL COUNCIL

HEADNOTE

Amendment by the Medical Council of a charge formulated by the Secretary pursuant to Regulation 14 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations, Cap. 161. On appeal, it was contended that the Council has no power to amend the charge. It was contended further on the appeal that the Council has power only to receive evidence on oath and that it erred in allowing to be tendered for its consideration a certified true copy of the notes of proceedings in the District Court.

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J U D G M E N T

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Power, V.-P., giving the majority judgment of the court:

1. This is an appeal brought under section 26(1) of the Medical Registration Ordinance Cap 161 against an order made by the Medical Council on 20 April 1993 whereby the appellant Dr. Lo Shing-kei was reprimanded under s21(1) of the Ordinance, following disciplinary proceedings brought against him.

2. The appellant obtained his medical qualifications at the University of Hong Kong in 1987. In July 1988 he was working as a houseman at Queen Elizabeth Hospital. The disciplinary proceedings arose from conversations he had in July 1988 with a Dr. Chan Kin-yip who was, at that time, also working as a houseman at Queen Elizabeth Hospital. The appellant and Dr. Chan were classmates at University, Dr. Chan having graduated about six months ahead of the appellant.

3. The charge upon which the appellant was found guilty of professional misconduct reads as follows:

"That you, being a registered medical practitioner, have been guilty of unprofessional conduct in that you did in July 1988 learn of a plan by Dr. Chan Kin-yip and another unknown person to steal drugs from a Government hospital and that you failed to report this matter to the Hospital Administrator, the police, the Medical Council or any other person in authority."

4. In essence, it is the appellant's case on appeal that the Medical Council had failed to conduct a "due inquiry" into the case as required by s21(1) of the Ordinance in the following respects:

(1) The Medical Council erred in law in permitting, at the hearing of the inquiry, an amendment to the charge as originally laid by the Secretary to the Council. The Medical Council erred because (a) the statutory scheme governing its proceedings did not permit such amendment or, (b) because in the circumstances of the case it was unfair and oppressive to have allowed the amendment.

(2) The Medical Council erred in permitting the notes of evidence taken by District Judge Leong in District Court Case No. 446/89 to be adduced in evidence. As to this the appellant, through counsel Mr. McCoy, says:

(a) Regulation 28(1) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations (which, on its face, permits evidence to be taken by the Council by means of a written statement) is inconsistent with the provisions of s22(1) of the Ordinance and cannot therefore be relied upon as the juridical basis for adducing such evidence and

(b) in any case, those notes of proceedings should not have been relied upon by the Council in convicting the appellant of professional misconduct.

Background facts

5. To appreciate Mr. McCoy's points it is necessary to recite the background facts.

6. At the end of September 1988 the appellant was arrested and subsequently charged with Dr. Chan Kin-yip and another person, a Mr. Wong Tai-shing (who was, in July 1988, a male nurse at the Queen Elizabeth Hospital) with conspiracy to steal drugs and medications belonging to the Hong Kong Government. The period covered by the charge was 1 July to 29 September 1988.

7. The trial took place in October 1989 before District Leong, the case being District Court Case No. 446/89. Dr. Chan and Mr. Wong pleaded guilty and became Crown witnesses in the appellant's trial. The appellant was found guilty and was sentenced to nine months' imprisonment, but, after he had served his sentence, the conviction was quashed by the Court of Appeal in October 1990, in Criminal Appeal No. 590/89, the appellant being awarded the costs of both the trial and the appeal.

8. By letter dated 13 December 1990 the Medical Council gave notice to the appellant of its intention to place before the Preliminary Investigation Committee material implicating him in unprofessional conduct, based upon the facts of the criminal case. The allegation was that in July 1988 the appellant had learnt of a plan by Dr. Chan and Mr. Wong to steal drugs from a Government hospital but failed to report the matter to anyone in authority. The material copied to the appellant was the following:

(i) The summary of facts in District Court Case No. 446/89;

(ii) The case report;

(iii) Notes of Proceedings;

(iv) Reasons for Verdict;

(v) Judgment of Criminal Appeal No. 590/89.

9. It is not clear from the papers before us when it was that the Preliminary Investigation Committee, after its investigations, eventually referred the case to the Council. At any rate, by notice dated 9 April 1991 the Secretary gave notice to the appellant that an inquiry by the Council would be held into the charge of unprofessional conduct. The allegation was, in terms, identical to that set out in the letter of 13 December 1990, namely, that the appellant had learnt of a plan by Dr. Chan and Mr. Wong to steal drugs and had failed to report this matter to anyone in authority.

10. The matter took another two years to come to a hearing. The reason, as counsel told us, was that eight full hearing days (commencing at 8.30 a.m. and ending at 6.00 p.m. each day) were thought to be required and it was difficult to convene the necessary quorum of the Council for such purpose. Such a lengthy hearing was anticipated because it was thought that Dr. Chan and Mr. Wong would be called as witnesses and there would be extensive cross-examination.

11. Eventually, dates were fixed in April 1993 and, afew days before the hearing, counsel for the Secretary gave notice of (i) an intention to amend the charge by deleting the reference to Mr. Wong Tai-shing and substituting the words "another person unknown" and (ii) an intention to call no witnesses.

Amending the charge

12. At the first day of the hearing, 20 April 1993, counsel acting for the Secretary applied to amend the charge. On the face of it, the amendment was insubstantial. The case as referred to the Council by the Preliminary Investigation Committee was that the appellant learned of a plan by Dr. Chan and Mr. Wong to steal drugs; the only amendment sought was to delete Mr. Wong's name and to substitute the words "another person unknown". It is difficult to imagine that this matter could have substantially affected the Preliminary Investigation Committee's view of the case.

13. What was argued, however, on behalf of the appellant was this: the Council's statutory duty was confined to the case as referred to it by the Preliminary Investigation Committee; once a notice of inquiry has been sent out by the Secretary in the form of a charge, the Council's statutory duty was to inquire into that case and no other. This, it is said, flows from the provisions of Reg 14 which are in the following terms:

"14. Determination of Committee that inquiry be held

(1) If the Committee determine that an inquiry shall be held it shall refer the case to the Council and the Chairman of the Committee shall notify the Chairman of the Council specifying the matters into which inquiry is to be made.

(2) Where a case has been referred to the Council under paragraph (1), the Chairman of the council shall fix a date upon which it is proposed that the inquiry shall be held and shall direct the Secretary to, and the Secretary when so directed, and within 1 month of the determination of the Committee, shall, serve on the defendant a notice of inquiry in accordance with Form 5 in the First Schedule together with a copy of these regulations.

(3) A notice of inquiry shall-

(a) specify in the form of a charge or charges the matters into which inquiry is to be made; and

(b) state the date, time and place at which the inquiry is proposed to be held."

14. In considering the validity of this point, it is important to bear in mind the provisions of section 21(1) of the Ordinance, which confer disciplinary powers on the Council. Section 21(1) does not confine the Council to holding an inquiry into a charge as formulated by the Preliminary Investigation Committee; its function is to inquire into "any case referred to it by the Preliminary Investigation Committee....". After a case has been referred to the Council, it is then the function of the Secretary to send out the notice of inquiry specifying in the form of a charge the matters into which the inquiry is to be made: Reg 14(3). The regulation provides, in Reg. 20(1), that the Secretary, who was represented at the hearing by Miss Shine, shall "at the opening of an enquiry.... read the notice of enquiry."

15. Miss Shine read the notice of enquiry which specified the charge and then sought the amendment. It is important to note that it was the Secretary, the person required by Reg. 14 to formulate the charge, who, before any material step had been taken at the hearing, sought to amend the charge.

16. It may well be that the Council could not properly allow an amendment by which the matter to be inquired into became a different case. The question in the present case, however, boils down to this: Within the ambit of a "due inquiry", does the Council have, by necessary implication under the statutory scheme, the power to allow the Secretary to formulate and to then reformulate the charge in such a way as to best facilitate "due inquiry" of the matter referred to it by the Preliminary Investigation Committee?

17. As mentioned earlier, s21(1) of the Ordinance confers powers on the Council to conduct a "due inquiry into any case referred to it by the Preliminary Investigation Committee". Subsection (2) then goes on to state:

"(2) For the purpose of subsection (1)-

'due inquiry' means an inquiry by the Council conducted substantially in accordance with procedure prescribed by regulations made under s33" (emphasis added).

18. Whilst the regulations do not expressly empower the Council to amend the charge, nevertheless if "due inquiry" of the case as referred by the Preliminary Investigation Committee so requires then, in our judgment, Regulation 14(3)(a) is wide enough to accommodate an amendment. Technically it is the notice of inquiry which is amended, to specify the amended charge.

19. We appreciate that, in the more modern statutes, such as the Dentists Registration Ord. cap 156, the Midwives Ord. cap 162 and the Enrolled Nurses Ord. cap 164 the corresponding regulations give specific powers to the disciplinary body to amend the charge. But, construing the Medical Registration Ordinance and the Regulations thereunder broadly and liberally, we hold that the powers of amendment exist, to the extent as set out earlier: that is to facilitate the due inquiry of the case as referred by the Preliminary Investigation Committee.

Should the power of amendment have been exercised?

20. The next question is: Did the Council err in law in deciding to allow the amendment in the circumstances of this case?

21. The reason which prompted the application to amend was this: Counsel representing the Secretary decided, at a very late stage, to re-cast the case against the appellant and, in effect, to confine the evidence in the disciplinary proceedings to the admissions made by the appellant in the course of his own testimony in District Court Case No. 446/89. In his testimony the appellant had given a detailed account of meeting Dr. Chan in July 1988 and learning of Dr. Chan's plot with "a group of his friends" to make money by stealing drugs; the appellant's role was to obtain discharge sheets and follow-up cards from hospitals to facilitate the theft of the drugs. The appellant's evidence was to the effect that when he learnt of this plot he said: "It is not worth doing so. It is unlawful and dangerous", and refused to participate. As the appellant, in his testimony, made no reference to Mr. Wong and did not suggest that Mr. Wong was implicated with Dr. Chan, the charge as originally formulated was clearly unsustainable on this evidence.

22. It is regrettable that counsel acting for the Secretary of the Medical Council did not, apparently, make plain her intention to amend until a few days before the hearing commenced. Mr. McCoy says that even at the hearing before the Medical Council he was left somewhat groping in the dark. Whether counsel for the Secretary might have been more considerate and courteous in the way she conducted the case is not a matter we need to decide; there can however be no fundamental objection to a party seeking to simplify its case and, in the process, to trim down on its averments. To have required the Secretary, by refusing the amendment, to adhere to an averment that the plot told to the appellant was between Dr. Chan and Mr. Wong, when on the evidence, this was not sustainable would have been an exercise of arbitrariness. In our judgment, the Council was correct in allowing the amendment.

Notes of evidence

23. What was put before the Council at the hearing was a certified true copy of part of the notes of proceedings in District Court Case No. 446/89. The certificate, dated 27 March 1992, made by the Assistant Registrar of the District Court, was in effect a verification of the fact that the notes constituted a transcription of the handwritten record kept by the District Judge. Mr. Sham, counsel for the respondent, submits that the Regulations permit a wide degree of latitude to the Council in the reception of evidence; in particular Regulation 28 which states:

"28. Evidence

(1) Evidence may be taken by the Council by oral statement on oath or by written deposition or statement.

(2) ....."

Does Regulation 28 conflict Section 22 of the Ordinance?

24. Mr. McCoy submits that Regulation 28(1) is inconsistent with section 22(1)(a) of the Ordinance, and therefore ineffective in law.

25. The law is clear. Subsidiary legislation, made under a statute, has no legal validity if it conflicts with the provisions of the enabling statute: see section 28(6) of the Interpretation and General Clauses Ord. cap 1.

26. Section 22 is as follows

"22. Powers of Council in regard to obtaining of evidence and conduct and conduct at proceedings

(1) For the purposes of an inquiry under section 21 the Council shall have the following powers-

(a) to hear, receive and examine evidence on oath;

(b) to summon any person to attend the inquiry to give evidence or to produce any document or other thing in his possession and to examine him as a witness or require him to produce any document or other thing in his possession, subject to all just exceptions;

(c) to admit or exclude the public or any member of the public from the inquiry;

(d) to admit or exclude the press from the inquiry;

(e) to award any person summoned to attend the inquiry such sum or sums as in the opinion of the Council may have been reasonably expended by him by reason of his attendance.

(2) Summonses to witnesses may be in such form as may be prescribed and shall be signed by the Chairman."

27. Mr. McCoy's argument is simply this: s22(1)(a) confines the Council, in the conduct of disciplinary proceedings, to receiving evidence on oath; no one has come forward to swear or affirm as regards the accuracy of the notes of proceedings; therefore, the notes of proceedings are not admissible in evidence pursuant to s22(1); insofar as Reg 28(1) purports to empower the Council to receive into evidence those notes by their simple production through counsel, Reg 28(1) conflicts with s22(1) and is ineffective in law.

28. In our judgment, s22(1)(a) does not confine the Council to receiving evidence in the way suggested. The Medical Council, in the discharge of its disciplinary functions, is not a court of law and, without express statutory authority, cannot compel the attendance of witnesses. Authority for this purpose is, therefore, given by s23 of the Ordinance. When a witness attends at an inquiry, whether by compulsion under s23 or voluntarily, he can be examined on oath: this is the effect of s22(1)(a). This provision does not either in terms or by implication limit the powers of the Council to receiving evidence in this way. The argument that Reg 28(1) is inconsistent with s22(1)(a) is unsound. The notes of evidence came within the expression "written deposition or statement" in Reg 28(1) and were prima facie admissible before the Council.

Effect of the admissions in the notes of proceedings

29. The matter boils down then to one point: What weight should the Council have put on those notes?

30. Mr.McCoy argues that even if the notes of proceedings were admissible, which he does not accept, they contain on their face such manifest errors that the Council should not have relied upon them. The only suggested error of any materiality is, in our view, that which he says occurs in the following passage which came at the end of the examination-in-chief of the appellant:

31. Mr. McCoy contends that this passage clearly omits the word "not" in the sixth line which, he says, should read "he was not doing something illegal". We find no warrant for such a suggestion. The appellant earlier in his evidence stated that he told Dr. Chan that what he intended to do was "unlawful and dangerous". He said in the first sentence of the passage set out above that Dr. Chan told him of a "plan to steal drugs". We are unable to see how it can be sensibly contended that the record might be corrupt in this passage. The appellant was clearly seeking to explain his failure to report by indicating that he refrained from so doing not because he wished to conceal something unlawful but because he was reluctant to bring down on his friend the serious consequences which would follow such a report.

32. We are satisfied that the appellant had, in the following passage at p.63 of the transcript, made an admission that on 24th July 1988 he learnt of a plan by Dr. Chan and others to steal drugs from a government hospital:

"At that time Chan asked me if he was interested in making money with him. He said a group of his friend had thought out a plan to make money and it was quite safe. He asked me if I was interested. I said I was. So I asked for details.

He said 'They intended to obtain some discharge sheets and follow up cards and then to go to the dispensary to obtain medicine - the expensive medicine and then sell to the people outside. The money made would be shared among us'.

He wanted me to assist him in obtaining some discharge sheets and follow up cards from hospitals. On hearing this, I said 'it is not worth doing so. It is unlawful and dangerous'.

When he heard this, he asked me why earlier on I had said I would help him and now that I withdraw.

I asked him if they were then doing that, because earlier I had seen the prescription forms in the foot of his car on the day we played tennis in Sandy Bay. He did not reply to me.

We talked for a while and he insisted that I should help him. I still refused.

Before leaving he warned me and said that I should not tell anyone about having seen the prescription sheets and about what we had discussed then."

33. We reject the suggestion that Miss Shine wrongly expanded the parameters of the charge by referring the Council to the applicant's evidence of events in August and September. A reading of the record of the proceedings before the Council shows, we are satisfied, that she did so only to prove, from the mouth of the appellant, that he had never made any report of the events of July. Indeed the Chairman of the Council ruled, at p.40, "... refrained from referring to ... the plan beyond July 1988 but that she be allowed to highlight the alleged failure to inform ...".

34. Mr. McCoy further submitted that the plan was embryonic and that the appellant was entitled to believe that it would never be implemented. This is a difficult ground to argue given that there was no evidence from the appellant and the proof of his unqualified and uncontradicted admissions set out above in which he had admitted knowledge of a "plan to steal drugs". The admissions having been established it was very much a matter for the Medical Council to determine whether the appellant's conduct was unprofessional. Professional misconduct carries a degree of moral turpitude. What the appellant was accused of was an act of omission. The Council's task was to determine whether the circumstances were such that the appellant had a plain professional duty to report the conversation to the authorities.

35. The Council had clear evidence that the appellant knew of a plan to steal drugs and that he had failed to report that knowledge. This was evidence sufficient to warrant a finding of professional misconduct.

36. We are satisfied that the Medical Council did have jurisdiction to make the amendment to the charge, that it did not err in allowing the Notes of Evidence of District Judge Leong to be adduced in evidence, and that the evidence was sufficient to warrant the finding of guilt to which the Medical Council came. The appeal must be dismissed.

37. In handing down this judgment, we make an order nisi for costs to be paid by the Appellant to the Respondent.

Liu, J.:

38. In September 1988, the appellant was charged with Dr Chan and one Wong Tai Shing with conspiring to steal drugs belonging to the Hong Kong Government. In late 1989, he was found guilty and sentenced to 9 months imprisonment. In late 1990, his conviction was quashed on appeal. In the meantime, the appellant had served his sentence.

39. By a letter dated 13th December 1990, the Medical Council gave the appellant notice that an information had been submitted to the Chairman of the Preliminary Investigation Committee. I shall call it "PIC". The information was that he came to know of a plan by Dr Chan and the said Mr Wong to steal drugs from a Government hospital but he failed to report it to the Hospital Administrator, the police, the Medical Council or any other person in authority. PIC determined that an enquiry should be held and referred the case to the Medical Council. The Chairman of PIC duly notified the Chairman of the Medical Council and specified in the notification the matters into which enquiry was to be made.

40. On 12th March 1991, through his then solicitors, the appellant drew the attention of PIC to the need to delete the said Wong Tai Shing from the complaint before referring the case to the Medical Council and giving notice of matters for inquiry to its Chairman. It is common ground that there is no evidence of the said Wong Tai Shing being involved with these drugs thefts in July 1988. After the said case had been referred to the Medical Council and the matters for inquiry furnished to its Chairman, a notice of inquiry dated 9th April 1991 was caused to be served on the appellant, which specified the said matters for inquiry in the form of a charge. The charge so formulated closely followed the case referred to the Medical Council by PIC and the matters for inquiry supplied. Five days before the hearing of the case against the appellant by the Medical Council, notice was given to the appellant's solicitors of the Council's intention to amend the charge by deleting the reference to the said Wong Tai Shing and substituting therefor the words "another unknown person". At the hearing, the Medical Council allowed the amendment applied for in terms and proceeded on the charge it amended to receive in evidence passages of the transcript of the appellant's own evidence given in his conspiracy criminal trial. The proposed amendment had been resisted by Mr McCoy for the appellant on the ground of jurisdiction or the lack of it. Counsel's objection was overruled by the Medical Council on the advice of its Legal Adviser. No other venue for amendment or reformulation was being canvassed, and the Medical Council alone had been asked to invoke its jurisdiction to amend. The Medical Council found the appellant guilty as charged and ordered him to be reprimanded and the reprimand to be published in the government gazette. The appellant feels aggrieved and he appeals to this Court. Publication of his reprimand has been suspended pending this appeal.

41. In support of the three grounds ventilated before us, counsel for the appellant argued: first, the Medical Council had no jurisdiction to and should not have, in the exercise of its discretion, amended the charge. Secondly, the transcript of the appellant's evidence was wrongly admitted in evidence by the Medical Council and thirdly, the finding of professional misconduct was against the weight of the evidence adduced.

42. In the first ground of appeal, it was virtually conceded that the power to formulate a charge in the notice of inquiry would, by necessary implication, include a power to re-formulate it. It was, however, argued by Mr McCoy, counsel for the appellant, that the power to re-formulate was exclusively exercisable by the Secretary in "proceedings preparatory to holding an inquiry" and that such reformulation should not seek to introduce any charge materially different from the case referred to the Medical Council or the matters for inquiry notified to its Chairman.

43. Who then is entitled to formulate and, so constrained, re-formulate the charge in the notice of inquiry? Under regulation 14(1) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations, PIC would refer a case to the Medical Council and the Chairman of PIC would notify the Chairman of the Medical Council of the referral and specify in his notification the matters into which inquiry is to be made. Under regulation 14(2), the Chairman of the Medical Council would then direct the Secretary to serve on the defendant a notice of inquiry in accordance with the prescribed form. It is in that notice that the matters into which inquiry is to be made are specified in the form of a charge. See regulation 14(3)(a). Therefore, it is for the Secretary, on the directions of the Chairman of the Medical Council, to serve the notice of inquiry containing the charge. It is reasonably clear that so directed, the Secretary of the Medical Council is the person responsible for formulating the charge for the inquiry.

44. It is important to try to appreciate what the Medical Council is required to deal with at the inquiry. Section 21(1) calls for due inquiry in accordance with regulations made under s.33. What is envisaged under the Ordinance is "an inquiry conducted substantially in accordance with procedure prescribed by regulations made under section 33" as defined in s.21(2). The Governor in Council is empowered by s.33(1)(j)(v) to make regulations for such an inquiry. At the inquiry, a defendant faces the charge. Submissions are made on and objections taken to the charge, and what is expected to be considered and determined, upheld and/or found, and given judgment and passed sentence on is or is in respect of the charge. See reg.20(3) "(reading of) the charge "; reg.21(1)&(2) "object to the charge ", "the charge ... shall be considered"; reg.22(b)(i)&(ii) "make ... submissions in relation to (the) charge ", "(finding of) facts alleged in (the) charge ", "the (wrong) facts alleged in the charge "; reg.22(c)(ii) "uphold the submission in respect of (the) charge ... guilty on (the) charge "; reg.24(1) & (2) "judgment... in respect of (the) charge ", "complainant in respect of (the) charge "; reg.25(1) "decision ... in respect of the charge ... finding of guilty of the offence charge " and reg.27(1) & (2) "the sentence in respect of (the) charge ", "complainant in respect of the charge " (emphasis supplied). In conclusion, what the Medical Council is enjoined to entertain is the charge so formulated against a defendant.

45. Regulations 9 to 16(4) are all in PART III of the Regulations under the rubric of "Proceedings preparatory to holding of an inquiry by the Council". Regulations 17 to 30 are in PART IV for "Proceedings at hearing of the Council". Hence, the notice of inquiry with the formulated charge as served by the Secretary on the instructions of the Chairman of the Medical Council under regulations 14(2) and (3)(a) is one of the preparatory measures taken before the hearing of the case at the inquiry. Being endowed with power to formulate the charge in a notice of inquiry, the Secretary would enjoy the implied power to re-formulate it. The Secretary's power to re-formulate the charge, as his power to formulate it, is exercisable at the preparatory stage before the inquiry. The Medical Council has clearly no power to amend the charge at the hearing. For the reasons I am about to develop, the power of the Secretary to re-formulate or amend the charge is evidently not to be so exercised as would materially alter the case referred to the Medical Council by PIC or vary the nature of the matters into which the enquiry is to be made.

46. It is provided by regulation 16(1) that in any inquiry which, in the opinion of the Medical Council, should not be held, the Medical Council may refer the case back to PIC for further consideration.

47. Regulation 16(1) reads :-

"Where, after a complaint or information has been referred to the Council for inquiry, further information is subsequently produced in writing which suggests that an inquiry should not be held, the Council may refer back the case to the Committee for further consideration."

The constitution, duties and powers of PIC and the Medical Council are such that they are intended to function as wholly separate and distinct entities in the statutory regime. PIC has three members. See regulation 9(1). The Medical Council is composed of 14 Members. See s.3 of the Medical Registration Ordinance. At any meeting of the Medical Council, five members shall be a quorum. See s.4. It decides by a majority. See s.4(4). It would seem that determinations of PIC must be unanimous. In addition, the Medical Council has the advantage of a Legal Adviser appointed by the Governor. See s.3B. At all the disciplinary hearings, the Legal Adviser must be in attendance. After due inquiry, the Medical Council is expected to exercise its vested disciplinary powers under s.21. "Due inquiry" means an inquiry by the Medical Council conducted in accordance with the procedure prescribed by regulations made under s.33. See s.21(2). No dual current membership of PIC and the Medical Council is allowed. See regulation 9(3). Former members of PIC are not even permitted to attend any meeting of the Medical Council as a member, inquiring into the same complaint or information. See s.33(1)(h) and regulation 9(7). On the receipt of a complaint or information of impropriety by the Secretary and its submission thereafter to the Chairman of PIC, the Chairman of PIC may direct the complaint or information to be referred to PIC for consideration and in its deliberation PIC may make further investigation. See regulations 10, 11, 12 and 12A. The more elaborate procedure for the inquiry conducted by the Medical Council is set out in PART IV of the regulations. These two entities have a purpose of their own to serve in successive stages of the disciplinary process. In particular, PIC has the power to put an end to the potential inquiry in the preliminary investigation by a determination that no inquiry shall be held. See regulation 13.

48. PIC and the Medical Council are run by their own self-contained code. A defendant has the right to have his case considered by PIC and inquired into by the Medical Council and he cannot be deprived of the dual protection afforded to him by the Ordinance. A material amendment at variance with the case or matters for inquiry referred to the Medical Council ought to be, therefore, first re-considered by PIC. Such a material reformulation would suggest "that an inquiry should not be held" and the Medical Council will not be ill-advised to refer the case back to PIC for further consideration as envisaged by regulation 16(1). This would also serve to illustrate that the power to re-formulate the charge could not be unlimited. Even if such power to re-formulate or amend the charge could be exercised at the hearing and by the Medical Council, no materially different case or matters for inquiry may be initiated for the consideration or continued consideration by the Medical Council.

49. In my judgment, at the hearing of the case against the appellant on the matters for inquiry as specified to the Chairman of the Medical Council, the Medical Council had no jurisdiction to entertain or grant the amendment sought by Ms Linda Shine. The Medical Council could not therefore hear or continue to hear the charge which it purported to amend. It could not proceed to find the appellant guilty of the purportedly amended charge. However, the allegation was about a plan on foot between known personalities to steal drugs. The gravamen of the charge was not the particular conspiracy to pilfer. It was the appellant's failure to report. Any claim of materiality in the identities of the conspirators in this charge must be over pedantic. The appellant would hardly feel less inhibited to report on Dr Chan and another unknown person than Dr Chan and Wong. The charge as amended by the Medical Council was not materially different. The ingredient of not reporting a crime was undisturbed. But for the challenge to jurisdiction, there would seem to be no good cause for interfering with the decision of the Medical Council. Whilst the courts may, so to speak, iron out the creases, the question of jurisdiction always rests with the Legislature. It is, therefore, quite unnecessary for me to deal with the second and the third grounds advanced by Mr McCoy. Suffice it for me to express briefly my view in deference to counsel's arguments.

The transcript bore on its first page the following impression:

"Certified true copy

(W.T. Tsang),

Assistant Registrar, District Court

27 Mar 1992."

Above the words "(W.T. Tsang)" was the purported signature of the Assistant Registrar. It did not specify what the pages were certified true copy of. Under regulation 28(1), evidence taken by the Medical Council may be by written statement. The Medical Council in disciplinary proceedings under s.21 is conferred certain powers by s.22(1). Section 22 does not, in my view, seek to preclude the Medical Council from exercising powers in regard to obtaining of evidence by other means. Section 22(1)(a) & (b) and (2) concern primarily witnesses. Other aspects of evidence come to be dealt with elsewhere, such as s.33(1)(j)(v) and regulation 28 made thereunder and s.21(4) which accepts as conclusive findings of fact made in matrimonial proceedings. In the course of making "due inquiry" into a case, the Medical Council is to be guided substantially in accordance with the procedure prescribed by regulations made under s.33. See s.21(2). By regulations made under s.33(1)(j)(v), the Governor in Council may lay down the procedure to be followed in relation to inquiries held by the Medical Council in disciplinary proceedings. Regulation 28(1) which admits written statement as evidence is such a regulation made under s.33(1)(j)(v). In my view, the transcript was properly admitted. Inaccuracy was a matter of weight, and there existed an avenue for verifying the passages sought to be read.

50. The Medical Council rightly exercised its discretion in admitting into evidence the passages read by Ms Shine, which formed part of the appellant's evidence given in his criminal trial and was included in the Appeal Bundle for his successful appeal. Dilatoriness had in no way caused material prejudice.

51. Lastly, for the passages read to the Medical Council by Ms Shine from the transcript, the Medical Council had not been demonstrated to be erroneous in its determination made on the charge as amended. I do not propose to enlarge further on this third ground. Mr McCoy himself appeared to be less than enthusiastic in supporting it. I only wish to add, however, that members of the Medical Council are best qualified to judge the professional standard of medical practitioners.

52. There is hardly any need to address myself specifically to the additional grounds in the respondent's notice.

53. I would allow the appeal and set aside the decision and order of the Medical Council made against the appellant.