DR. SIU TING WING v. THE MEDICAL COUNCIL OF HONG KONG

CACV 235/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 235 OF 2008

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL
OF HONG KONG MADE ON 20^TH JULY 2008)

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Hon Le Pichon JA:

1.  This is an appeal from a decision of the Medical Council following a disciplinary hearing against the appellant. At the conclusion of the hearing, the appeal was dismissed with written reasons to be handed down which we now do.

2.  The Medical Council found that the appellant had been guilty of misconduct in a professional respect concerning 12 matters, the first 10 (charges (a) to (j)) related to the appellant’s failure to ensure that medication dispensed to the patient on various occasions in May 2004 had been properly labelled.  In each case, the deficiency or deficiencies identified comprised one or more of the following: omitting (i) the name of doctor or means of identifying the doctor who prescribed medication; (ii) a name that properly identified the patient; (iii) the date of dispensing; and (iv) the trade name or pharmacological name of the drug.  The remaining two matters were:

“(k) in or about May 2004 he prescribed to the patient an inappropriate anti-obesity medication, namely Qualicana tab;

(l) in or about May 2004 he failed to provide appropriate monitoring for the possible side-effects of the anti-obesity treatment.”

3.  The Medical Council ordered that the appellant’s name be removed from the General Register for a period of six months in respect of charges (a) to (j), 10 months for charge (k) and 9 months for charge (l), all to run concurrently but consecutively to a removal order for a period of three months made on 16 April 2008 in other disciplinary proceedings.

4.  On this appeal, the appellant abandoned his appeal against his sentence but challenged his conviction on four grounds.

Background

5.  In 2004 when the patient was 18 years old, he sought weight reduction treatment from a beauty consultancy, namely Be A Lady Ltd and joined an anti-obesity programme which included treatment by registered medical practitioners.  Be A Lady operated at different locations.  His treatment commenced on 3 May 2004 in the Mongkok branch by a Dr Yeung.  On this occasion as well as on all subsequent visits for treatment, the patient was accompanied by his mother (“Madam Wong”).

6.  Finding the Mongkok branch too crowded, the patient switched to the Shatin branch for his second and subsequent treatments.  It is the second and subsequent 3 treatments provided at the Shatin branch on 12 and 19 May and 2 and 9 June 2004 that have given rise to the charges against the appellant.  Medicines were prescribed and dispensed at each of those treatments.

7.  On each of the four occasions in question, the patient was treated by the same doctor (“the treating doctor”).  As recorded by the Medical Council in §4 of its decision, a few days after the treatment of 19 May 2004, the patient “began to develop serious mood swings, insomnia and aching in the chest.  He would shout aloud and sweep things onto the floor.”  On the 2 June visit, the patient told that treating doctor about those matters and enquired whether they were related to the medication.  The treating doctor was ambivalent as to whether they had been caused by the medications but continued to prescribe similar medicines to the patient.  After taking the medications for several more days, the patient had a very serious depression and very much wanted to commit suicide.  He then stopped taking the medicines.  On 9 June 2004, the patient again told the treating doctor that he still had the depressive conditions.  The treating doctor then told him that he would stop prescribing one of the medicines.  No physical examination was conducted.

8.  As the mood swings and suicidal thoughts continued, the patient’s mother took the patient to consult a psychiatrist, Dr Ip Yan-ming on 11 June 2004 and psychiatric treatment continued for over 3½ years afterwards.

9.  In September, the patient’s mother complained to the Medical Council by letter, enclosing the 10 medicine bags that had contained the medicine the patient had been prescribed.  That complaint was made against the appellant as the treating doctor and culminated in the present disciplinary proceedings against the appellant.

10.  In issue before the Medical Council and on this appeal was whether the treating doctor was the appellant.  The Medical Council made the following findings:

“11. Having regard to all the evidence, in particular the mother’s identification and corroboration by other witnesses, we are satisfied that the [appellant] did provide treatment to the patient on the 4 occasions in May and June 2004.”

11.  Having found that the appellant was the treating doctor on the four occasions referred to in §6 above, the Medical Council further found that the medicines had been prescribed and dispensed by the appellant and that they had not been properly labelled.  It also concluded that the prescription of Qualicana was not appropriate and that the appellant had failed to provide appropriate monitoring of the side-effects of the treatment provided.

This appeal

12.  Mr Beel (who appeared for the appellant) challenged the Medical Council’s decision in four respects: that the Medical Council erred in (1) finding that the appellant had prescribed the medicine in question; (2) failing to properly evaluate the evidence of identification so as to render its finding that the appellant had been properly identified flawed; (3) failing to properly consider the appropriate standard of proof and/or direct itself properly on that issue; and (4) failing to consider properly and evaluate the evidence as a whole.

13.  While apparently not regarded by Mr Beel as the major issue, logically, the second ground should be dealt with first for it would be dispositive of the appeal should there be any merit in the point.

The ‘identification’ issue

14.  The appellant challenged the Medical Council’s finding of fact that the appellant had treated the patient for obesity on the four occasions of treatment administered at the Shatin branch referred to in §6 above.  In the notice of appeal (which was amended with the leave of this court granted at the outset of the hearing) it was put on the basis that the evidence on identification was unreliable in that the patient and Madam Wong could only have known of the name of the treating doctor from what others had told them.  In other words, the evidence was unsatisfactory because it was based on hearsay.

15.  I preface this appeal by observing that proceedings of an inquiry by the Medical Council are not criminal proceedings and it would not be appropriate to approach them as if they were a criminal trial, governed by rules of evidence that are applicable to criminal proceedings.  Regulation 31(1) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, Cap. 161E provides that:

“[t]he Council may at the hearing of an inquiry admit or take into account any statement, document, information or matter, whether or not it would be admissible in a court of law.”

16.  That the Medical Council was fully aware of the importance of the issue of identification is obvious from its decision.  The appellant’s evidence was succinctly summarised in §6 which read:

“6. The [appellant] maintained that he had no memory of having provided treatment to the patient. He claimed that he worked in various branches of Be A Lady including the Shatin branch from May to August 2004 on a part-time basis, only providing Dysport and tissue filler injections to clients but was not involved in weight reduction treatments at all. He also claimed that he never prescribed medicine to clients in Be A Lady.”

17.  Immediately following that paragraph, the Medical Council stated:

“7. The crucial question for us to resolve is whether the [appellant] had provided treatment to the patient. The patient was unable to identify the [appellant] as the doctor who provided treatment to him. The patient’s mother also failed to do so initially when she was asked to see whether the doctor was present in the enquiry. Later she was given the opportunity to observe each person at close distance after she revealed that she had problems with her vision. After looking at various persons at close distance, she pointed out the [appellant] but with the remark that [the appellant] “was not that young and not that fair”. At the conclusion of her evidence when being excused from the witness stand, she further volunteered that the [appellant] “really looks like Dr. SIU Ting Wing”. When she was told that her evidence was finished she again said that “I think he looks very like him”.”

18.  The Medical Council was fully cognisant of the fact that the patient did not recognise the treating doctor at the hearing and of the “equivocal” nature of Madam Wong’s evidence.  However, having regard to all the evidence, it considered that there was ample evidence to corroborate Madam Wong’s identification and set that out at some length in §§8-10 of its decision.

19.  As I understand it, Mr Beel’s criticism was that the reliability of the evidence of the patient and Madam Wong was cause for concern because their evidence was that they knew the name of the doctor only from the nameplate rather than from any introduction effected by the staff of Be A Lady to the doctor.  The nameplate was but one aspect of the evidence and the weight to be attached to it would depend on the circumstances.  Unless the nameplate error was so fundamental as to negate the other evidence considered sufficient to identify the appellant as the treating doctor, there would be no basis for this court to interfere with the factual finding made by the Medical Council.

20.  While the evidence of Madam Siu (who was the chairman of Be A Lady at the relevant time) and Ms Mak (a slimming consultant at the Shatin branch responsible for handling the patient’s file and arranging and following up on his appointments for consultation) was that there were no nameplates, there was clear evidence of Ms Mak’s routine procedure on a new customer seeing a doctor for the first time. The relevant passages appear in transcript of proceedings of 5 May 2008:

“ LEGAL OFFICER:  For the first time, would you introduce the doctor to the customer?

MS MAK (witness):  Yes.”

(Tr. p. 78 ll. 15-18)

“ LEGAL OFFICER:  When Dr Yeung was at the desk, how could the customer know whether it was Dr Yeung or Dr Siu?

MS MAK (witness):  We would introduce the doctor to the customer, especially when it was the first consultation.  When it was the second consultation, the customer knew which doctor it was.”

(Tr. p. 83 l. 38 - p. 84 l. 8)

21.  Madam Siu’s evidence on 5 May 2008 corroborated Ms Mak’s evidence:

“ MS SIU (witness) :  The customer should know who the doctor is.  For the first time they see the doctor, the doctor will be introduced to them.  If they ask us, we will definitely tell them the name of the doctor.  It is very important.”

(Tr. p. 67 ll. 1-6)

When Madam Siu was recalled for further examination on 19 July 2008, she reconfirmed this:

“ MS SIU (witness):  Yes, I went back and asked my colleagues.  They said that when a client is brought in to see a doctor there will be a brief introduction.

DR CHAN:  So, it is just a verbal introduction?

MS SIU (witness):  Yes, that this is Doctor who and who …”

(Tr. p. 34 ll. 18-25)

Given that evidence, it was open for the Medical Council to infer that an introduction would have been effected.  In the overall scheme of things, the nameplate error could not reasonably be regarded as fundamental if, on the evidence, the patient and Madam Wong could and would have come to know the treating doctor’s name through a different route.

22.  I now turn to consider the more significant of the matters corroborative of Madam Wong’s identification. The appellant does not dispute that at the relevant time he worked on a part-time basis at the Shatin branch. The unchallenged evidence of Madam Siu and Ms Mak was that at the material time there were only two doctors working at the Shatin branch, namely, the appellant and Dr Yeung. There was no other doctor with the surname Siu working there and, as I understand it, Mr Beel did not go so far as to suggest that there was a third doctor working there at the relevant time surnamed Siu. The course of treatment purchased by the patient required, inter alia, consultations with medical doctors. According to the records of Be A Lady, the patient was seen on those four occasions by one of the doctors although the name of the doctor was not recorded.

23.  The patient knew Dr Yeung. It was Dr Yeung who had treated the patient at the Mongkok branch only nine days prior to the first of the four occasions in question. Further, after the patient had become dissatisfied with the treatment given by the treating doctor on those four occasions, he continued his sessions at Be A Lady but, instead, changed to Dr Yeung who continued to see him until 20 September 2004. The patient’s evidence was that the treating doctor was a doctor other than Dr Yeung and that the doctor’s name was that of the appellant. His evidence relating to the second visit on 19 May was:

“ LEGAL OFFICER:  Do you remember did you greet him when you saw him?

[the patient] (witness):  I did.  Because my mother always treated me like a child and told me to greet somebody whenever I see somebody.  So, I said “Dr. Siu” and he nodded in acknowledgment.”

(Tr. p. 132 ll. 20-28)

24.  Given the matters set out in the preceding two paragraphs, by a process of elimination or logical deduction, the ineluctable conclusion is that the appellant was the treating doctor. In my view, the Medical Council had ample evidence to support its finding that the appellant was the treating doctor. In the circumstances of this case, any other conclusion would have been an affront to common sense. In my view, the appellant’s case on identification is wholly devoid of merit.

Whether the appellant had prescribed the medicine placed before the Medical Council

25.  The Medical Council accepted the evidence of the patient and Madam Wong that during the consultations, the doctor would write down the prescriptions which would then be dispensed by a staff of Be A Lady, under the authority and on behalf of the doctor who made the prescriptions and that the medicine bags produced contained the medicines prescribed and dispensed by the appellant.

26.  Mr Beel submitted that the issue was not whether the medicine had been prescribed but whether the medicine bags produced had emanated from the Shatin branch. He criticised the Medical Council for not dealing with what he called the ‘discrepant’ evidence. He referred to the following passage the transcript of Madam Siu’s evidence on 5 May 2008:

“ CHAIRMAN:  Then the medicine or drug bags.  Page 7, please, our bundle, the bundle on the table before you.  You used these bags, these medicine bags?  You can see the dates, 19 May, 12 May.  Were these bags used by your company BAL?

MS SIU (witness):  No, these are not the bags of our company.

CHAIRMAN:  Have you brought along your company’s medicine bags or you can fax a sample or a copy to us?

MS SIU (witness):  I think I have brought along one sample, the bag that carries the logo of our company.

CHAIRMAN:  But was that used in 2004?

MS SIU (witness):  There is no date on the medicine bag.

CHAIRMAN:  But, the medicine bag you are going to show us was the same type used in 2004?

MS SIU (witness):  The type used in 2004, I believe has been used up.

CHAIRMAN:  Was it of the same design?

MS SIU (witness):  Rather similar…”

(Tr. p. 53, ll. 35-38 to p. 54, ll. 1-26)

Madam Siu then produced a sample bag which was exhibited and which bore the logo of Be A Lady.  Her evidence was that she “believed” that that was the type of medicine bag used in 2004.  However, there were no records to show when Be A Lady started using those bags.

27.  Madam Siu joined Be A Lady in June 2003. At that time there was only one doctor, namely, Dr Yeung who had brought over some of his clinic’s medicine bags. While Madam Siu’s evidence was:

“… but since 2003 onwards, I thought that we should have our own medicine bags…”

(Tr. p. 62, ll. 3-4)

that statement was somewhat equivocal and rendered more so when the evidence of Ms Mak (who started working at Be A Lady in February 2004)is considered.  Ms Mak’s evidence was that the bags the patient had produced were similar to the bags used at the time.  Not only did her evidence not undermine the patient’s case, it did not support Madam Siu’s evidence:

“ LEGAL OFFICER:  In 2004, was there anything special about the medicine bags produced or issued by the company?

MS MAK (witness):  No, and I didn’t know whether the bags were issued by the company or whether they belonged to the doctor.

…

DEFENCE COUNSEL:  Can you remember whether the medicine bags used at that time carried the logo of the company or not?

MS MAK (witness):  I really cannot remember.”

(Tr. p. 85, ll. 3-28)

28.  Mr Beel also criticized the Medical Council for failing to address another aspect of Madam Siu’s evidence, namely, that her company had never purchased a drug called “Soment” which was written as the name on one of the bags produced by the patient. The point made was that that must cast serious doubt as to whether any of the drugs had come from Be A Lady. But it seems that an error had occurred when the name of the drug was recorded as the medical expert, Professor Brian Tomlinson, Professor of Medicine and Therapeutics at the Chinese University of Hong Kong, could not identify that medication and was unable to locate a drug by that name in the website of the Department of Health of the Hong Kong SAR of drugs registered in Hong Kong. Mr Beel then complained that the Medical Council did not request the production of accounting records which would have corroborated Madam Siu’s case. But it is not evident how that could have served any useful purpose when the name of the drug had not been properly recorded.

29.  In so far as it was suggested that Madam Wong had purchased the medicines from pharmacies, it was not supported by the evidence. The purchase made was limited to the one type of fat-reducing medicine that had been prescribed by Dr Yeung and which had no side effects on the patient.

30.  Having found that that the appellant was the treating doctor, it was open to the Medical Council to accept the evidence of the patient and Madam Wong that he had prescribed the medications to the patient. It was not derived as a matter of inference from the evidence as to the normal operating procedure at Be A Lady only. There was Madam Wong’s evidence as to Dr Ip’s comment (that a person suffering from depression should not consume such medicines) when he was shown all the medicines that had been prescribed by the appellant. While Mr Beel sought to highlight the absence of any reference to the appellant prescribing medicines to the patient in Dr Ip’s report of 17 November 2004 which he said was inexplicable, there was reference to the medicines prescribed by the appellant in Dr Ip’s report of 25 February 2005. But more importantly, had the appellant not prescribed the medicines, he would have reacted very differently to the patient’s question as to whether there was any relationship between the patient’s ‘conditions’ as recorded in §7 above and the medicines prescribed. In my view, the appellant’s answer gave rise to an irresistible inference that the appellant had indeed prescribed the medicines.

The standard of proof

31.  The appellant accepted that legal advice had been given by the legal adviser on the appropriate standard of proof. As I understand it, his complaint was that because the Medical Council had made no reference to the standard of proof in their decision, it had applied the wrong standard, because (it was said) of the degree of inherent improbability that the appellant would have committed the acts attributed to him. In my view, the Medical Council was well aware of the seriousness of the charges.

32.  The theme that has pervaded the entire appeal was that the Medical Council had left “material discrepancies …unresolved” and “skipped over evidence in the appellant’s favour”. I have sought to address most of the so called “material discrepancies”. Whether any deserve the epithet “material” is debatable. The “discrepancies” are nothing more than conflicting evidence on particular issues and it was a matter for the Medical Council as the fact-finding tribunal to accept or reject the evidence of any particular witness on a particular issue.

The evidence

33.  It was then said that the Medical Council failed to consider properly and evaluate the evidence as a whole and in particular, failed to “resolve illogical, embellished and evasive testimony” from Madam Wong or to establish what were inherent improbabilities and probabilities from the evidence.

34.  The Medical Council consists of lay members who are not professional judges. As Ma J (as he then was) observed in Dr Wu Hin Ting v Medical Council of Hong Kong [2004] 2 HKC 367 at 380 F:

“… a professional judge may have given more reasons as to why the evidence of one witness was to be preferred to that of another or have conducted a more detailed analysis but this is not the test.  It is to be noted that the nuances and sub-issues that arose under the main issues with which the Medical Council had to deal, were properly identified by counsel for the appellant and by the legal officer.  These were no doubt considered by the Medical Council …”

I respectfully agree.

35.  In the present case the Medical Council was well aware of the main issues and the position of the parties. It is not a case where the findings of the Medical Council were ‘out of tune’ with the evidence as a whole but rather that it preferred the evidence of the patient and Madam Wong to that of the appellant and his witnesses on the critical issues. I am not persuaded that the decision of the Medical Council was in any respect unsafe and unsatisfactory and, in my view, no basis has been made out that would warrant this court to interfere with the decision.

Hon Cheung JA:

36.  I agree.

Hon Kwan JA:

37.  I agree with the Reasons for Judgment of Le Pichon JA.