DR. CHU KIN WAH v. THE MEDICAL COUNCIL OF HONG KONG

CACV 204/2024

[2026] HKCA 31

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 204 OF 2024

(ON APPEAL FROM THE ORDER OF INQUIRY PANEL OF THE MEDICAL COUNCIL OF HONG KONG DATED 28 APRIL 2024)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

A.  Introduction

1.  This is an appeal brought by the Appellant, a doctor since 1981 and a specialist in General (particularly Colorectal)  Surgery since 1998, against the decision of the Inquiry Panel of the Medical Council (which we shall simply call the “Council”)  finding him guilty of two counts of professional misconduct and ordering the removal of his name from the register of medical practitioners for a period of 3 months and 6 months respectively (to run concurrently).

2.  The disciplinary proceedings arose out of an incident in which surgical gauze was left in a patient’s abdomen after an operation conducted in October 2015.  The disciplinary charges relate however not to the operation itself (since the retention of surgical gauze was not necessarily the Appellant’s responsibility or fault), but to alleged failures on the part of the Appellant in the post-operative clinical management in November 2015 (charge A)  and July 2016 (charge B).

B.  Factual background

3.  Although the misconduct found related specifically to 2 consultations on 18 November 2015 and 27 July 2016 respectively, it is necessary to set out the broader circumstances and history in which those consultations took place.  The factual background below is taken from the decision of the Council given on 28 April 2024 (“Decision”)  with modifications.  Except as indicated otherwise, the primary facts were not disputed in the inquiry before the Council.

(1)  The events leading to the operation on 23 October 2015

4.  The patient in question (“Patient”)  had prostate cancer, and robotic prostatectomy was performed on 17 July 2015 at Hong Kong Sanatorium & Hospital (“HKSH”).  The Patient experienced severe abdominal pain after defaecation the following day.  An emergency laparoscopy on 18 July discovered a perforation at the sigmoid colon above the rectovesical pouch.[1] The sigmoid colon was found to be thickened and shortened and to have a large number of diverticuli.[2]  The perforation was suspected to have been among the diverticuli.  On 19 July, the perforation was repaired and a loop sigmoid colostomy[3] was performed.  The surgeon’s plan was to perform sigmoid colectomy[4] in a few weeks’ time. 

5.  The Patient, accompanied by his daughter (“Daughter”), first consulted the Appellant on 14 August 2015 for a second opinion as to whether there was another option instead of sigmoid colectomy.  The options of sigmoid colectomy versus closure of colostomy[5] were discussed.

6.  The Patient also sought advice from Dr Arthur van Langenberg on 21 August 2015.  He arranged barium enema on 4 September, which showed no evidence of diverticular disease.  On 7 September, the Patient saw Dr van Langenberg again, who wrote a letter advising that there was no need for resection and the colostomy might be closed in about 3 months’ time.

7.  On 17 September, the Appellant saw the Patient, and was shown Dr van Langenberg’s letter.  The Appellant advised closure of colostomy subject to further investigation.  He scheduled gastrografin enema[6] (“GE”)  for the Patient on 22 October and colonoscopy on 23 October, to be followed by closure of colostomy if justified by these investigations.

8.  The Patient was admitted to HKSH on 22 October. GE showed no evidence of leakage of contrast from the rectum and sigmoid, and total colonoscopy showed mild diversion colitis in rectal stump with no other gross lesion.

(2)  The operations on 23 & 25 October 2015

9.  On 23 October 2015, the Appellant performed closure of sigmoid colostomy on the Patient.  10 pieces of surgical gauzes were employed during the operation.

10.  The Patient subsequently developed fever and abdominal pain.  The provisional diagnosis was peritonitis with underlying suspicion of anastomotic leak.  Emergency laparotomy was performed by the Appellant on 25 October.  Intra-abdominal collection of brownish fluid mainly over left paracolic gutter[7] was found, and the anastomosis of sigmoid colon was intact.  Pelvis was relatively clean and the rest of the peritoneal cavity was clean.  The collection was drained and transverse colostomy was performed at right upper quadrant as proximal diversion.  Distal limb was irrigated with normal saline and was then stapled.  Abdominal drain was placed in pelvis.  The Appellant also took a peritoneal swab to soak up some of the abdominal fluid for laboratory bacterial culture.  20 pieces of gauzes and 10 abdominal pads were used during the operation.

(3)  The post-operative care up to November 2015

11.  The microbiology report dated 28 October showed that the fluid contained 5 bacteria (i.e. Enterococcus faecalis, Morganella morganii, Proteus vulgaris, Clostridium ramosum, and Enterococcus avium). Antibiotics were prescribed and administered.  Tazocin[8] was prescribed and administered intravenously.

12.  Fever and pain subsided and a drain was removed on the 7^th day after the operation (2 November).  On 3 November, the Patient was discharged.

13.  On 4 November, the Patient attended a general out-patient clinic complaining of abdominal discomfort and asking for analgesic.  He was seen by Dr Chieng and abdominal tenderness was found on physical examination.  He had no fever and the stoma functioned well.  Dr Chieng referred him to A & E Department (“AED”)  of Caritas Medical Centre (“CMC”)  for further management, stating in the referral letter “recent abdo procedure; abdo percussion tenderness”.

14.  The Patient did not attend AED of CMC, but consulted Dr Wong at Surgical Clinic of CMC on 5 November.  He was recorded to have no history of fever, abdominal pain, nausea or vomiting.  There was also no record that he had pain on physical examination.  A CT scan was booked for 16 November but the Patient defaulted. 

15.  On 18 November 2015, the Patient attended the first post-operative consultation with the Appellant.  There was a dispute whether the Patient spontaneously complained to the Appellant of abdominal pain or whether the Appellant detected tenderness (i.e. pain upon palpation)  during physical examination.  The Appellant’s clinical notes of that day showed that physical examination showed “tenderness of LUQ”, which meant that the Patient had pain upon being pressed at the left upper quadrant of the abdomen. Colostomy was recorded as “(old and new wound ok)”.  Two oral antibiotics (Flagyl (Metronidazole)  and Cefuroxime)  were prescribed.  A follow-up consultation was scheduled on 25 November 2015.

16.  After seeing the Appellant, on the same day, the Patient consulted Dr van Langenberg.  His clinical notes recorded “Indurated area, deep tenderness  ? abscess” with reference to the upper abdomen, medial to the colostomy.  CT scan was suggested.

17.  On 25 November, the Patient attended the second post-operative consultation with the Appellant.  The Appellant’s clinical notes of that day showed “Pain resolved”, “Findings: PE: nad” which meant no abnormality was detected on physical examination, and “Colostomy ok”.  3-month follow-up was given.

(4)  Relative stability up to early July 2016

18.  In January 2016, upon follow-up with CMC, the previously skipped CT scan was rebooked for 22 July 2016 for re-assessment of intra-abdominal collection.

19.  On 2 March 2016, the Patient attended the third post-operative consultation with the Appellant.  There was weight gain of 22 lbs with no complaint from the Patient.  Physical examination revealed no abnormality, and the colostomy was “ok”.  The Appellant planned GE in 4 months, to be followed by closure of colostomy if justified.

20.  On 25 April, the Patient consulted Dr van Langenberg.  According to the clinical notes, Dr van Langenberg noted that there were still indurated areas above umbilicus.  Dr van Langenberg noted a CT scan appointment with the Hospital Authority (“HA”)  had been scheduled on 22 July 2016 and suggested decision on closure of colostomy after CT scan.

21.  On 4 July 2016, the Patient attended the fourth post-operative consultation with the Appellant.  The Appellant’s clinical notes of that day showed that the Patient’s body weight had remained more or less the same as on 2 March 2016.  Physical examination detected no abnormality.  Colostomy was “ok”.  The Appellant arranged GE to be done on 11 July 2016 as outpatient at HKSH.  The Appellant also noticed that CT scan had been arranged for the Patient by HA on 22 July 2016.

(5)  The Patient developed symptoms in July 2016

22.  On 8 July 2016, the Patient attended AED of CMC because of vomiting and hiccup on the previous day.  X-rays (chest and abdomen)  were taken.  On the same day, the Daughter called and informed the Appellant’s nurse that the Patient had attended AED of CMC.  The Daughter told the nurse that CMC had arranged a follow-up for the Patient on 11 July, so that the GE appointment scheduled for that day had to be cancelled.

23.  On 16 July 2016, the Patient attended AED of CMC for on-and-off nausea/acid reflux for one week.  There was vomiting of undigested food.  The Patient complained of mild abdominal pain.  There was mild tenderness medial to the colostomy.  X-rays (chest and abdomen)  were taken.

24.  On 18 July, the Patient attended the fifth post-operative consultation with the Appellant.  This consultation was unscheduled.  The Patient complained of abdominal pain and passing loose stool.  No abnormality was found on physical examination.  GE was re-scheduled to 28 July at HKSH.  Probiotic cleanse was prescribed.

25.  The scheduled CT scan took place on 22 July 2016 at CMC.  CT abdomen and pelvis with contrast was performed.  According to the CT examination report (“CT Report”)  prepared by Dr Chu, Radiologist at CMC:

“ … The proximal jejunum[9] appears prominent with small faecal sign noted, transition of calibre at upper mid abdomen, mechanical intestinal obstruction cannot be excluded. Hyperdense to metallic materials is noted inside the dilated jejunum, ?ingested foreign body, it is present in the similar position in the AXR since 8-7-2016 but not seen on 15-9-2015, suggest clinical correlation. The wall of this segment of dilated jejunum appears thickened with increase in surrounding stranding, can be inflammatory change. …”

26.  Upon follow-up by Dr Shum, Associate Consultant of the Department of Oncology of Princess Margaret Hospital, on 26 July, the Patient complained of abdominal colicky pain.  Physical examination found tenderness over central abdomen and colostomy was functioning.  Dr Shum noted the CT Report.  Dr Shum wrote a referral letter to AED of CMC for assessment and consideration of admission to the Department of Surgery for further investigation (“Referral Letter”).

(6)  The consultation on 27 July 2016 and the GE

27.  On 27 July 2016, the Patient attended the sixth post-operative consultation with the Appellant.  The Appellant recorded in his clinical notes that the Patient had attended AED of CMC twice on 8 and 16 July 2016.  The CT Report (without the films)  and the Referral Letter were produced to the Appellant.  Physical examination showed normal colostomy.  The words “Likely GE” (i.e. likely gastroenteritis)  were written.  (By this, the Appellant meant that the Patient likely had gastroenteritis before, not at the consultation on 27 July.)  The Appellant asked the Patient to proceed to GE (Gastrografin Enema)  at HKSH the next day.  The Patient also consulted Dr van Langenberg on the same day.

28.  On 28 July, Dr Li, a radiologist of HKSH, conducted GE on the Patient.  The GE report of that date prepared by Dr Li (“GE Report”)  was faxed (without the films (“GE Films”))  to the Appellant’s clinic at 3:30pm on the same day, but the Appellant did not come round to reading it until late at night.  On the Appellant’s instruction, his nurse called the Daughter that night to tell her about the GE findings (that there was no leakage of contrast agent from the sigmoid colon and the findings were suggestive of diverticular disease in sigmoid)  and to advise that the Patient could proceed with closure of the colostomy. 

29.  In fact, the GE Films, not seen by the Appellant, clearly showed a radio-opaque, ribbon like structure in the epigastrium.  Unfortunately, the GE Report did not mention anything about this foreign object. (Dr Li, the radiologist, was subsequently on 22 September 2020 found guilty of professional misconduct in failing to report the presence of a foreign object on the X-ray examination taken on the Patient (as part of the GE)  on 28 July 2016.  An order was made for the removal of his name from the General Register for 2 months, suspended for 18 months.)

(7)  The Patient ceased consulting the Appellant

30.  At that point the Patient and his family lost confidence in the Appellant.  On the next day, 29 July, they went to HKSH and took away the GE Report and Films, without telling the Appellant.  The Appellant’s nurse called HKSH in early August 2016 to enquire and was informed that the GE Report and Films had been taken away by the Patient or on his behalf.  The Appellant did not receive the GE Films at any material time.

31.  Having obtained the GE Films, the Patient consulted Dr van Langenberg on 30 July. Dr van Langenberg’s clinical notes recorded the following:

“ +++Strange ribbon-like opacity in upper central abdomen, identity unclear, ??possible retained gauze?++”

Dr van Langenberg agreed to refer the Patient to Queen Mary Hospital (“QMH”)  and suggested an X-ray of the abdomen.

32.  On 1 August, the Patient had an X-ray of the abdomen supine and erect and lateral.  Dr Wong, the radiologist, recorded in the radiological report of the same date:

“ A radiopaque ribbonlike structure about 1 cm in width and with a curled and partly folded appearance is noted in the left anterior part of the abdomen at the L3/4 level. The outer margins of this structure measure about 3.5 × 3.5 × 2 cm. It may be located in the peritoneal cavity or inside a loop of bowel. There is suggestion of a poorly defined soft tissue shadow surrounding this structure. It measures about 7 cm in diameter.

…

   When compared to the previous Gastrografin study of 28 Jul 2016, there is no significant change apart from slightly gaseous distension of the jejunum in the left side of the abdomen.  The radiopaque ribbonlike structure has shown no change in size or position. Reviewing the previous Gastrografin study on 22 Oct 2015 (performed just before the abdominal operation on 23 Oct 2015), this ribbonlike structure was not present before the operation.  Clinical correlation or follow up by a CT scan is suggested for localisation of this structure (which may be a foreign body)  and to confirm or exclude the presence of granuloma surrounding this structure.”

33.  On the same day, Dr van Langenberg wrote a referral letter to Professor W L Law (“Prof Law”)  of QMH. 

(8)  The operation in August 2016

34.  On 3 August 2016, the Patient consulted Prof Law.  Prof Law planned to admit the Patient on 17 August for operation on the following day.  However, rapid deterioration in the Patient’s condition in the next two days (4-5 August)  prompted an emergency operation on 6 August by Prof Law at QMH.  A large fist-sized mass comprising surgical gauze was found in the Patient’s abdomen.

C.  The proceedings before the Council

35.  On 8 September 2016, the Daughter lodged a complaint to the Council against a number of doctors, including the Appellant, and the operation theatre staff of HKSH.

36.  In May 2017, the Council notified the Appellant that the complaint had been referred to the Preliminary Investigation Committee (“PIC”).  On 27 July 2017, the Appellant made written submissions to the PIC. 

37.  At its meeting in August 2017, the PIC decided that the case should proceed further with the allegations that the Appellant (i) failed to take reasonable steps to ensure that no foreign body would be left in the Patient’s abdomen after the operation, and (ii) failed to take any action when informed by the Patient of recurring abdominal pain and discomfort and possible presence of a foreign object in his abdominal cavity. 

38.  On 12 April 2018, the Appellant lodged further written submissions with the PIC.

39.  On 6 January 2020, the Council gave notice to the Appellant that an inquiry would be held into a charge against him.  The charge was subsequently amended to the following two counts (which we will call “A” and “B” respectively):

“ That in or about October to November 2015 and July 2016, [the Appellant], being a registered medical practitioner, disregarded his professional responsibility to his patient [the Patient] in that:

(a)  in or around November 2015, he failed to take appropriate and/or adequate investigation (e.g. blood tests and/or CT scan)  after he had been informed of the Patient’s complaints of abdominal pain and/or discomfort; and/or

(b)  in or around July 2016, he failed to properly and/or adequately attend to the possible presence of a foreign object in his abdominal cavity.

   In relation to the facts alleged, either singularly or cumulatively, he has been guilty of misconduct in a professional respect.”

40.  The hearing of the inquiry, commencing on 17 August 2021 and ending with the delivery of the Decision on 28 April 2024, took place on 14 days (3 days in 2021, 4 in 2022, 5 in 2023 and 2 in 2024).  We are informed that part of the reason why the inquiry only started in 2021 was that it took time to obtain Dr van Langenberg’s notes and experts had to be engaged after the PIC stage.  Without intending any personal criticism of the chairperson and members of the panel, we have to say that it is highly undesirable and unsatisfactory that an inquiry of this nature only commenced 5 years after the events and then sprawled over the next 4 years.  It is not in the interests of justice for disciplinary proceedings to be delayed long after the alleged misconduct had occurred or for the proceedings to be stretched out over an extended period of time, especially where there are disputes of fact that may turn on oral evidence.  

41.  The Secretary of the Council (“Secretary”), prosecuting the charges, called the Daughter, the Patient and an expert, Dr Poon Chi Ming Michael (“Dr Poon”), to give evidence.  The Appellant’s witnesses were himself, his 2 nurses Ms Siu and Ms Sze, and an expert, Dr Lam Ching Wa (“Dr Lam”).

42.  Dr Poon’s opinion was that the Appellant’s clinical management of the Patient was proper and appropriate except at the first and the sixth (and last)  post-operative consultations on 18 November 2015 and 27 July 2016 respectively.  The focus of the inquiry was therefore on these two consultations.

D.  The Appellant’s case at the inquiry

43.  Put in broad terms, the Appellant’s case at the inquiry in relation to charge A was that at the consultation on 18 November 2015, the Patient did not spontaneously complain of pain. Tenderness was detected only upon palpation of the Patient’s abdomen, which he duly recorded.  He did not think the tests proposed by Dr Poon were needed as the Patient’s condition did not require them.  Dr van Langenberg who saw the Patient on the same day likewise did not conduct those tests although he suggested a CT scan might be done.  The management the Appellant adopted was a course of empirical antibiotics with follow-up in 7 days.  If the Patient’s condition changed, there was always the opportunity for the Appellant to review his treatment and order such tests as required.  This incremental approach paid off, for the Patient did not even have tenderness upon follow-up on 25 November.  Dr Poon’s opinion based on the possibility of abscess should be rejected because there was no persistent pain.  The Appellant could take comfort from the successful anti-septic operative procedures carried out on 25 October and think that the chance of treatment failure was low.

44.  In relation to charge B, the Appellant contended that there was no reason to suspect a retained surgical instrument for that was a rare occurrence.  The CT Report suggested the foreign body was inside the jejunum and thus might be an ingested object.  The Appellant recommended proceeding with the GE the next day, which, he could reasonably expect, would pick up the foreign body and the anastomosis if one existed.  The scheduled GE was appropriate and there was no need for immediate hospitalisation on 27 July as the Patient’s condition was stable and generally satisfactory.  Dr van Langenberg who also saw the Patient on 27 July did not object to the GE and did not call for immediate admission.  Prof Law, who saw the Patient on 3 August with much more information including the GE Films and the subsequent X-ray, decided the Patient did not need to be admitted until 17 August.

E.  The Decision of the Council

45.  In its Decision, on charge A, the Council accepted the Daughter’s evidence and found that the Patient had complained to the Appellant at the consultation on 18 November 2015 that he had abdomen pain from time to time, rejecting the Appellant’s contrary evidence in this regard.[10]  In any event, on the Appellant’s own case he detected tenderness upon palpation at the left upper quadrant of the abdomen.[11] The Council noted that the operation performed on 25 October 2015 was heavily contaminated (as the culture swab from peritoneal cavity showed a number of bacterial growth), with the consequence that surgical site infection could happen any time after operation.[12]  They found that the presence of pain or tenderness in this case, only a few weeks after a contaminated surgery, indicated possible post-operative complication, particularly possible intra-abdominal infection.[13]  The Appellant had said that his diagnosis on 18 November 2015 was “possible mild intra-abdominal infection arising from the operation on 25 October 2015, although post-operative delayed wound infection or muscle strain could not be ruled out.”  The Council did not believe that the differential diagnoses of wound infection, wound inflammation and infection of muscle beneath the wound had even crossed the Appellant’s mind at the consultation,[14] and found that without further investigations the Appellant had no basis to think that the possible intra-abdominal infection was “mild”.[15]  The Council took the view that intra-abdominal infection was a serious condition and could progress to intra-abdominal abscess which would be an emergency situation.  It thought that the possibility of intra-abdominal infection should be worrisome to the Appellant.  Since the common clinical presentation of such infection would be fever, tachycardia and hypotension, the Appellant should have done further investigations including “taking body temperature, blood pressure, checking pulse, blood test (i.e. white cell count, infective markers), blood culture, and/or CT scan, etc”.[16]  The treatment given by the Appellant, i.e. a 7-day course of 2 oral antibiotics (Flagyl (Metronidazole)  and Cefuroxime), was “not appropriate” because they could hardly kill the bacteria that grew in the previous culture or hospital-acquired intra-abdominal infections.  The Appellant should have confirmed the diagnosis before deciding what type of treatment was appropriate, but he did not.  He did not follow the principle of prescribing antibiotics.[17]  Given that intra-abdominal infection could progress fast and could be life-threatening, asking the Patient to come back 7 days later without monitoring was “totally inappropriate”.[18]  The Council concluded that the Appellant had not performed any appropriate and/or adequate investigations that ought to be done on 18 November 2015 to confirm or exclude intra-abdominal infection, and that he had thereby fallen below the standards expected of registered medical practitioners in Hong Kong.[19]

46.  On charge B, the Council noted that the CT Report of 22 July 2016 contained prominent words calling for attention.  The experts agreed that the report contained 3 abnormal findings: (i) the presence of foreign metallic body; (ii) some form of obstruction; and (iii) inflammation; and that it was alarming.[20] The Council stated that Dr Shum’s Referral Letter showed that she had already ascertained from the Patient there was no history of ingestion of foreign object, and that as the Appellant had read this, he did not ask the Patient for such history, which showed that the Appellant himself did not believe the possibility of ingestion of foreign body was high.[21]  The Council thought that given multiple abdominal operations had been performed, a specialist in General Surgery should consider the possibility of retained surgical instrument (“RSI”).[22]  The Council did not accept that the partial obstruction was caused by a post-operative adhesion or that the inflammation could be explained by gastroenteritis.  They saw a “high possibility” it was a foreign body that had caused the partial obstruction and inflammation because the CT scan confirmed the presence of both foreign body and partial obstruction, suggesting that the foreign body might have caused erosion to the wall of the bowel.  The Council said this was “definitely an alarming and life-threatening situation”.[23]  It found that there was no basis to think that the obstruction would subside, and that as a responsible surgeon, the Appellant ought to have taken steps to remove the foreign body as soon as possible, and that neither GE nor closure of the colostomy would be appropriate.  An X-ray should be ordered immediately and arrangement made immediately for the Patient to be hospitalised for monitoring, and preparation for operation, and if necessary, for emergency operation.[24]  The Council rejected the Appellant’s claim that on 27 July 2016 he advised proceeding with the GE for the additional purpose of investigating the foreign body, noting, inter alia, that the Appellant did not draw the radiologist’s attention to the possible presence of foreign body and did not wait for the GE Films before advising the Patient on the night of 28 July to proceed with closure of colostomy.[25]

47.  The Council considered that whilst the GE Report was silent on any foreign body, the Appellant should only have formed his clinical judgment and given his clinical advice after seeing the GE Films or should at least have qualified his clinical advice as a preliminary one pending review of the GE Films, but he never did so.[26] The Council took the view that, even if the Appellant had intended the GE to serve the additional purpose of investigating the foreign body, sending the Patient to GE the next day was still “improper and inadequate”.  The Appellant ought to have taken steps to remove the foreign body as soon as possible.  Neither GE nor closure of the colostomy would be appropriate.  The Council concluded that the Appellant had fallen below the standards expected of registered medical practitioners.[27]

48.  On sentencing, the Council noted that the Appellant had a clear disciplinary record, and had performed a great number of endoscopies and colorectal surgical procedures without complaint from any patient or major problems.  The Council gave credit for the character reference letters submitted and the Appellant’s contributions to the medical profession and the public.  The Council considered that the offences “were very serious in nature, which placed the Patient at risk of life-threatening situation.”  They had “grave concern that the [Appellant] did not put the Patient’s well-being as the top priority”, and observed that the Appellant had not proposed any concrete measure to ensure that he would put patients’ well-being as the top priority in future.  The Council said they “need to ensure that the [Appellant] has insight into his inadequacies and will not repeat the same or similar breach in the future.”  In the end, they ordered that the Appellant’s name be removed from the General Register for 3 months in respect of charge A and 6 months in respect of charge B, to run concurrently, and refused to suspend the removal orders.[28]

F.  The appeal

49.  From the Council’s Decision, the Appellant appeals to this court pursuant to section 26(1A)  of the Medical Registration Ordinance (Cap 161), which provides that the Court of Appeal may on appeal affirm, reverse or vary the order, or remit the case to the original inquiry panel to hold a new inquiry or to the Council for appointing another inquiry panel to hold a new inquiry.

50.  The amended notice of appeal is lengthy and wide-ranging.  From that document and the oral and written submissions presented, the principal contentions advanced on behalf of the Appellant may be summarised and grouped into the following points.

51.  With regard to charge A, the Appellant contends:

(1)  The case opened upon by the Secretary on charge A was that the symptoms and timing indicated possible intra-abdominal abscess but the Appellant simply treated the Patient with antibiotics and thought he had residual infection.  The case of a possible abscess was not made out, and the Council did not find that the Appellant should have made a differential diagnosis of abscess.  Charge A should therefore have been dismissed.  It was wrong for the Council to go on and find against the Appellant on the basis of a different and artificial case of deficiency in investigation and treatment in light of possible intra-abdominal infection.

(2)  The Council erred in finding that on 18 November 2015, the Patient complained to the Appellant of having abdominal pain from time to time, as opposed to the Appellant detecting tenderness in the left upper quadrant of the abdomen.

(3)  The Council erred in rejecting the Appellant’s case that he had diagnosed “possible mild intra-abdominal infection” and considered the possibilities of wound infection or muscle strain.  The Council further erred in concluding there was a “life-threatening” condition in November 2015.  The Council wrongly conflated intra-abdominal infection with intra-abdominal abscess.

(4)  The Council erred in finding the Appellant guilty of misconduct for not measuring temperature, pulse and blood pressure and for prescribing antibiotics, the necessity for which was not indicated.  It was not misconduct for the Appellant to adopt an incremental approach, prescribing a course of antibiotics with follow-up in 7 days.  If the Patient’s condition changed, the treatment could be reviewed and adjusted.  This incremental approach paid off, as even the tenderness had disappeared on the follow-up on 25 November 2015.

52.  In relation to charge B, counsel for the Appellant submit that the Council found the Appellant guilty of misconduct based on 5 findings that went beyond the Secretary’s case and Dr Poon’s report and were in any event erroneous, namely: (1) that the Appellant should have considered the possibility that the suspected foreign object was an RSI; (2) that the Appellant should have noted the Patient had a life-threatening condition and steps should have been taken immediately for an X-ray and for removal of the foreign object; (3) that the Appellant should have rung up the radiologist for the GE; (4) that the Appellant should have waited for the GE Films before advising the Daughter; and (5) that the GE was in any event improper and inadequate and the Appellant should have taken steps to remove the foreign object as soon as possible.

53.  In relation to these 5 findings, the Appellant contends:

(1)  It was not part of the Secretary’s case that the Appellant should have considered the possibility that the suspected foreign object was an RSI.  None of the many doctors who saw the Patient at the relevant times suspected an RSI.

(2)  There is no evidence to find that the Patient had a life-threatening condition requiring immediate hospitalisation and operation to remove the foreign object.  The Patient was clinically stable when examined by the Appellant.  The colostomy was working.  It was prudent first to find out the nature of the suspected foreign object and then decide, and not to immediately operate to remove.  It was the reasonable expectation of the Appellant that the GE (which included an X-ray to produce a scout film)  would pick up any foreign object.  Neither Dr van Langenberg nor Prof Law immediately put the Patient into hospital.

(3)  It was not part of the Secretary’s case that the Appellant should have rung up the radiologist at HKSH before the GE.  The Council misread Dr Lam’s evidence and also failed to take into account that it was HKSH’s practice to ask patients to bring all relevant documents to the GE and that the Daughter was reminded to bring both the CT Report and the Referral Letter to HKSH for the GE.

(4)  It was not part of the Secretary’s case that the Appellant should not have advised the Daughter just on receipt of the GE Report but should have waited for the GE Films.  The Appellant was entitled to rely on the expertise of the radiologist, and had a reasonable expectation that the GE Films would come to him in the usual course.

(5)  It was not part of the Secretary’s case that even if the GE was intended to serve the additional purpose of investigating the foreign body, it was still improper and inadequate because the Appellant should have taken steps to remove the foreign body as soon as possible.  Dr van Langenberg, consulted on the same day of 27 July 2016, did not think the GE would do any harm.  Further, the Appellant did not have control over the management after the GE, as the GE Films were removed by the family who then consulted Dr van Langenberg.  The GE would have enabled the Appellant to deal with the foreign body (if found)  and closure of the colostomy in a single operation.  Such operation was subsequently carried out by Prof Law on 6 August 2016.

54.  Against the sentence imposed by the Council, the Appellant contends that the removal order was wrong in principle and manifestly excessive having regard to various matters raised in his favour, and that the Council unfairly relied on matters not stated in either charge.

G.  The applicable principles

55.  Before dealing in turn with these contentions and the arguments raised, we shall explain briefly the relevant legal principles that govern the appeal. 

56.  First, insofar as the Appellant seeks to challenge any primary finding of fact made by the Council, there is a high hurdle which applies generally to appeals to this court whether from lower courts or specialist tribunals.  The proper approach is well established based on reasons that have been amply explained in the authorities.  The question on an appeal is not whether the appellate judges would themselves have come to a different finding of fact on the available evidence, but whether it was permissible for the trial tribunal to make the finding which it did in the face of the evidence as a whole.  The Court of Appeal will not disturb such a finding unless it is shown to be plainly wrong.  If the appellate court is not so satisfied, it should defer to the trial court’s conclusion even if it is in some doubt as to its correctness.  An appellant is required to identify a mistake in the evaluation of the evidence by the tribunal of fact that is sufficiently material to undermine its conclusions, such as where the tribunal ignored crucial evidence, materially misinterpreted evidence, made a finding that is not supported by evidence, or made a finding that no tribunal in its rational judgment could have made.  Mere assertions that a finding is against the weight of the evidence or that the tribunal should have reached some other conclusion because of points advanced below, do not suffice to show such palpable errors. See: Ting Kwok Keung v Tam Dick Yuen & Ors (2002)  5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd & Ors (CACV 11/2015, 27 November 2015); Yu Man Fung Alice v Chiau Sing Chi Stephen [2021] HKCA 1456 at §§6-8; Cheung Yuk Ying Engracia v Macgregor Isabella [2023] 3 HKLRD 164, §28.

57.  In this regard, Mr Kok submits on behalf of the Council that this court can only reverse the findings of the Council if, on reviewing the evidence as a whole, “the only possible conclusion” is to suggest a reversal of what was found, citing Dr Wu Hin Ting v Medical Council of Hong Kong [2004] 2 HKC 367, §41.  The phrase “the only possible conclusion” was however borrowed from a case of judicial review (as opposed to an appeal)  from a disciplinary tribunal’s decision: Tse Lo Hong v Attorney General [1995] 3 HKC 428, 444F.  Moreover, in the relevant passage in Dr Wu Hin Ting, that sentence was preceded by a reference to the principles in Libman v General Medical Council [1972] AC 217, in particular that a finding of fact could not be displaced on appeal unless it was sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread. Subsequent cases have shown that the courts’ powers are less restricted than the Libman principles may have suggested and that the appropriate degree of deference will depend on the circumstances: Ghosh v General Medical Council [2001] 1 WLR 1915; Preiss v General Dental Council [2001] 1 WLR 1926; Lau Koon Leung v Medical Council of Hong Kong [2006] 3 HKLRD 225 at §§23-28, 62-71, 77-79; Sin Chung Yin Ronald v Dental Council of Hong Kong (2016)  19 HKCFAR 528, §§46-48.  The passage in Dr Wu Hin Ting, which was based on the Libman principles, must now be read in light of these subsequent authorities.

58.  The principle that emerges from the applicable authorities may be described as follows.  Whilst there may be some lay members in a professional disciplinary tribunal such as the Council, these tribunals usually comprise members of the profession with knowledge and expertise special to their field not possessed by appellate judges.  This court will therefore be “diffident about interfering with a disciplinary body’s assessment of matters calling for professional judgment and expertise”: Sin Chung Yin Ronald v Dental Council of Hong Kong (2016)  19 HKCFAR 528, §49, per Ribeiro PJ. The appropriate degree of deference the court accords to the tribunal depends on the circumstances of the case and, in particular, on the nature of the question at hand.  Thus where the disciplinary charge concerned attributing responsibility to dentists as directors of a company that had employed an unregistered dentist to perform dental service, the court saw no reason for reticence: Sin Chung Yin Ronald, §50.  In contrast, where a doctor had failed to carry out certain examination of a patient and to prescribe certain treatment, the court considered whether this constituted serious misconduct turned on findings related to technical questions of the practice of medicine, which were pre-eminently a matter for the professional tribunal: Mallon v General Medical Council 2007 SC 429.

59.  This court adopts a similar approach towards sanctions imposed by a professional disciplinary body such as the Council.  Section 21 of the Medical Registration Ordinance provides that where professional misconduct is established, the inquiry panel “may, in its discretion, exercise” one or more of the specified powers to impose sanctions. The court recognises that in deciding on the appropriate penalty for a disciplinary charge, the Council not only has to have regard to the effects and consequences of the penalty on the doctor in question, but must also bear in mind its 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.  The court also acknowledges that, with members of the profession on the panel, the Council is uniquely qualified to assess the proper sentence to be imposed for professional misconduct.  As a professional disciplinary committee, the Council is best placed to weigh the seriousness of professional misconduct in the light of the whole gradation of seriousness of the cases that come before it and to decide what measures are from time to time required for the purpose of maintaining professional standards.  This court therefore accords an appropriate measure of respect to the decision of the Council and is very slow to interfere with its determination of the appropriate sanction.  It has variously been said that the court will only interfere where the sentence is “plainly and obviously inappropriate”,[29] “clearly wrong and unwarranted”,[30] where the court is “quite satisfied that the sentence was wrong and unjustified”[31], or where it is “plain that the sentence imposed was inappropriate”.[32]  But there is no definitive or exhaustive test, and each case must depend on its own circumstances.  See: Wong Cheuk Yi v Medical Council of Hong Kong [2020] 1 HKLRD 289, §§46 & 50; Lau Koon Leung v Medical Council of Hong Kong [2006] 3 HKLRD 225, 251; Ng Mei Sin v Medical Council of Hong Kong [1995] 1 HKLR 204; Chow Siu Shek v Medical Council of Hong Kong [1995] 2 HKC 527.

H.  Charge A

(1)  Whether the Council found misconduct on a new and artificial case

60.  It is submitted on behalf of the Appellant that the case opened upon by the Secretary on charge A was that the symptoms and timing indicated possible intra-abdominal abscess but the Appellant simply treated the Patient with antibiotics and thought he had residual infection.  There was however no evidence giving indication of an abscess, since that requires persistent abdominal pain, which was not found.  It is not disputed the Patient in fact had no abscess.  In the end the Council did not find that the Appellant should have made a differential diagnosis of abscess.  Charge A should therefore have been dismissed.  It was wrong for the Council to go on and, departing from the Secretary’s case, to find against the Appellant on the basis of a different and artificial case of deficiency in investigation in light of possible intra-abdominal infection.  This infringed the requirements of procedural fairness.

61.  We do not accept this submission.  It is course important that a doctor accused of professional misconduct should be informed clearly of the substance of the charge against him: see e.g. Dr Wu Daniel Yiang v Medical Council of Hong Kong (CACV 162/2013, 15 December 2014), §§37-42.  But the charge here did not accuse the Appellant of failing to diagnose an abscess.  It charged him with failure “to take appropriate and/or adequate investigation (e.g. blood tests and/or CT scan)  after he had been informed of the Patient’s complaints of abdominal pain and/or discomfort”. Clearly the Council’s conclusion does not fall outside the scope of the charge.

62.  It is fair to say that the Secretary’s expert, Dr Poon, did state in his first report that the Patient “had persistent abdominal pain after discharge” and that post-operative complication, “in particular intra-abdominal abscess was highly suspicious”.  He criticised the Appellant’s clinical management as bearing the risk of missing the diagnosis of intra-abdominal abscess and the risk of treatment delay.[33]  In his oral evidence, Dr Poon accepted there was no evidence of persistent pain, but said there was recurrent pain, and that intra-abdominal abscess was still a possible differential diagnosis.[34]

63.  We do not however accept that the Secretary’s counsel in her opening confined the scope of charge A to abscess.  What she said was:[35]

“ The first conduct is concerned with the event happened 3 weeks after the Defendant’s operation, which is some time in the mid November 2015. So, basically what happened is that the Patient complained of abdominal pain and discomfort in the relevant consultations. And our expert says that based on the timing and the symptoms presented on this Patient, this indicate a possible serious complication called intra-abdominal abscess. But the Defendant just treated the Patient with antibiotics and thought the Patient had residual infection. And we say this is inappropriate because he ought to have carried out further investigations.”

So the case was that the Appellant was informed of the Patient’s abdominal pain and discomfort and that his management was inappropriate because he should have carried out further investigations.  The Council was informed of the opinion of the Secretary’s expert, namely that intra-abdominal abscess was indicated, but this does not mean that the Council must dismiss the charge if it did not substantially accept that opinion.

64.  In the Secretary’s closing submissions,[36] counsel expressly made submissions on the alternative case that if the possibility of abscess was found to be remote, and one of the differential diagnoses was possible intra-abdominal infection, then basic investigations (e.g. blood tests)  should still have been carried out.

65.  In the end the Council did not find that on 18 November 2015 the Appellant should have made a diagnosis of intra-abdominal abscess either definitively or as part of the list of differential diagnoses. Nevertheless, the Appellant’s management of the Patient in the light of the risk of intra-abdominal infection had been extensively investigated in the evidence of the Appellant[37] and his expert Dr Lam[38] during the inquiry.  The Council noted that it was the Appellant’s own submission made to the PIC[39] that his clinical diagnosis on 18 November 2015 was “possible residual intra-abdominal infection” arising from the surgery on 25 October 2015.  The Council also reasoned that the fact that the Appellant prescribed antibiotics on 18 November 2015 showed that in his mind there might be some form of infection.[40] 

66.  As the Council further explained based essentially on Dr Lam’s evidence, intra-abdominal infection (i.e. organ space infection)  might progress to intra-abdominal abscess, which was a serious type of intra-abdominal infection with significant mortality and morbidity and would be an emergency situation.  The possible infection in the Patient’s case, being likely a hospital-acquired one, carried worse prognosis.  It might be caused by resistant pathogens, and the organisms found inside the Patient’s gastrointestinal tract could be virulent.  Intra-abdominal infection can only be confirmed or excluded by further investigations such as taking body temperature and blood tests.[41]  

67.  In these circumstances, we do not think that it was a wholly new case or that there was any procedural unfairness, for the Council to find that the Appellant fell below the expected professional standards by failing to take appropriate and/or adequate investigation to confirm or exclude intra-abdominal infection.

(2)  Whether the Council erred in its findings on pain

68.  The premise of charge A is that the Appellant “had been informed of the Patient’s complaints of abdominal pain and/or discomfort”.  What the Appellant was informed is a question of primary fact.  The available evidence included the oral evidence of the Patient, the Daughter and the Appellant, and documentary evidence such as medical notes.  There was a conflict of evidence in that the Daughter said that at the consultation on 18 November 2015, the Patient complained to the Appellant that he had pain in his abdomen from time to time.[42] The Appellant disputed this, and maintained there was only tenderness (i.e. sensation of pain elicited by palpation)  in the left upper quadrant of the Patient’s abdomen. 

69.  The Council analysed the evidence closely.  It noted that the Daughter’s evidence that the Patient had pain on 4 November 2015 was supported by the referral letter of that date from Dr Chieng to the AED of CMC which recorded the Patient’s complaint of “abdo discomfort” and that he had come for analgesic.  The Council noted that the Appellant’s clinical notes of 18 November 2015 stated “Findings : PE: tenderness LUQ”, but also contrasted it with his notes of 14 August 2015 which recorded “Abdominal pain: -ve”, meaning that when he asked the Patient of his symptoms and medical history, the Patient did not complain of abdominal pain. The Council further noted that the Appellant’s consultation notes on 25 November 2015 recorded “Pain resolved” before “Findings : PE: nad”.  Since complaint/history usually comes before physical examination findings in clinical records, the Council considered that “Pain resolved” was very likely an entry of complaint/history and suggests that the Patient had previously complained of pain on 18 November 2015.  The Council also noted that the Appellant had submitted to the PIC that his clinical notes of 25 November 2015 showed that the Patient’s pain “had subsided” and “had been resolved”, and rejected the Appellant’s evidence that the entries referred to the result of physical examination and meant “pain/tenderness on palpation resolved”.  The Council also rejected the Appellant’s evidence that the tenderness detected at the consultation on 18 November 2015 was “slight”.  It considered it more likely that the Patient/Daughter rather than the Appellant would have recalled accurately the conversation.  In conclusion the Council found that the Patient did complain to the Appellant of on-and-off abdominal pain at that consultation.[43]

70.  On this appeal, it is submitted on behalf of the Appellant that the Council erred in this finding, and that there was only tenderness in the left upper quadrant of the abdomen.  This contention faces not only the usual high hurdle of an appeal against a finding of fact (see §56 above), but also the hurdle arising from the Council’s special expertise which it evidently applied in evaluating the relevant evidence (see §58 above).  In other words, this court is doubly disadvantaged in assessing the evidence on this point.  In our view, the Appellant has not established any ground that entitles this court to disturb the Council’s finding.

71.  Reliance is placed on the Appellant’s notes of 18 November 2015 and Dr van Langenberg’s notes of consultation on the same date which also recorded “deep tenderness”.  Citing Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Ll Rep 1 at 57, the Appellant’s counsel submit that when there is conflicting evidence, such contemporaneous documentary evidence should have been preferred.  The Council was aware of the contents of the Appellant’s and Dr van Langenberg’s notes.  We are not in a case where the oral evidence is actually contradicted by the documents. It is not in dispute that there was tenderness found on physical examination, as recorded in the notes.  However, in the notes of 18 November 2015 there was no record of absence of pain, in contrast to the notes of 14 August 2015.  What the Appellant relies on is the absence of record of complaint of pain.  But the probative effect of such absence is something the Council is peculiarly well qualified to assess with their familiarity with clinical records and practice.  It is evident from its reasoning that the Council did not place much weight on it.  This affords no ground for complaint on appeal as the question of weight is a matter for the tribunal of fact, not the appellate court.

72.  Reliance is also placed on the Daughter’s evidence that the Patient had no severe pain between 5 and 18 November 2015 and skipped the CT scan booked for 16 November.  We do not think this detracts from the Council’s finding.  What the Daughter said was that during that period there was no such severe pain[44] that the Patient had to go to A&E immediately.  This is consistent with the fact that the Patient defaulted on the CT scan on 16 November at CMC.  But this does not contradict the Daughter’s evidence about telling the Appellant about on-and-off pain.

73.  In any event, it does not seem to us that the Decision of the Council hinges on whether the Appellant was informed that the Patient had on-and-off pain or he only found tenderness upon palpation.  As the Council put it at §§55 and 60 of the Decision, both pain and tenderness could not be accounted for by wound pain and the presence of “pain/tenderness” in the circumstances of this case indicated possible post-operative complication and, having ruled out wound infection or inflammation and infection of muscle beneath the wound, what should be worrisome to the Appellant was intra-abdominal infection.

(3)  Whether the Council erred in finding a life-threatening condition

74.  On behalf of the Appellant, the Council is criticised for finding that the Patient had a “life-threatening” condition on 18 November 2015.  It is said that there was no basis for the Council so to conclude, and that it had wrongly conflated intra-abdominal infection with intra-abdominal abscess.  It is also said that the Council committed a “fundamental error” by disregarding key evidence contained in Dr van Langenberg’s clinical notes.  The Patient was clinically stable on 18 November 2015 and Dr van Langenberg was clearly content with a suggested CT scan upon the follow-up in 7 days.

75.  We are unable to find any reviewable error in this respect in the Council’s Decision.  First, to be accurate, the Council did not find that the Patient was in a life-threatening condition on 18 November 2015.  What it said was: “Given that intra-abdominal infection could progress fast and could be life-threatening, seeing the Patient 7 days later without monitoring was totally inappropriate.”[45]  It was therefore not to the point for the Appellant’s counsel to submit that given the Patient only had abdomen pain from time to time but not severe pain, there was no cause to conclude the symptom was a life-threatening condition.  The point is that the intra-abdominal infection, which the Appellant accepted as a differential diagnosis, could quickly develop into something life-threatening.

76.  There is evidential basis for the Council’s conclusion.  Medical literature placed in evidence states that intra-abdominal infection is “associated with substantial morbidity and death, despite therapeutic advances made over the past decades.”[46]  Dr Lam agreed that intra-abdominal infection is a very serious condition (though he stressed that mortality is higher in patients who have a failure of the index source control procedure, which was not the case here).[47]  The Appellant accepted in his evidence that intra-abdominal infection, if it progressed and was not treated properly, could develop into abscess,[48] and an abscess, according to Dr Lam, would be an emergency situation.[49]  Dr Lam said that the possible infection in the Patient’s case was likely a hospital-acquired one and, compared to community-acquired infection, carried worse prognosis because it could have been caused by resistant pathogens.[50]  Dr Lam also agreed that the bacteria in the possible infection of the Patient could be virulent, and that the deterioration in his condition could be very fast (with the Chairperson suggesting in her questions that it could be within hours and Dr Lam replying that it usually takes 1 to 2 days).[51]

77.  As for Dr van Langenberg’s notes of the consultation on 18 November 2015, we do not think they assist the Appellant on the present point.  Dr van Langenberg noted a wide area of induration in the epigastrium medial to the colostomy, tender to palpation.  He wrote down “? abscess”, showing a suspicion of abscess.  He also wrote “Now on antibiotics.  Adv CT scan** soon”.  The Appellant’s counsel submit that Dr van Langenberg’s suspicion of abscess must be “low”, otherwise he would have booked the CT scan himself.  This is not a valid inference since Dr van Langenberg was not the doctor-in-charge but giving a second opinion.  Although he did not tell the Patient to have an immediate CT scan,[52] he advised one soon.  In our view, his notes do not detract from the Council’s finding that the patient possibly had the intra-abdominal infection and that this could progress fast and could be life-threatening.

(4)  Whether the Council erred in finding misconduct for not measuring temperature, pulse and blood pressure and for prescribing antibiotics

78.  Finally we come to the Appellant’s attack on the Council’s findings relating to his treatment of the Patient on 18 November 2015.  A number of arguments have been raised by counsel, which may be summarised as follows:

(1)  Dr van Langenberg made similar clinical findings to the Appellant upon physical examination of the Patient on 18 November 2015.  He was aware the Appellant had prescribed antibiotics, and left it to the Patient to inform the Appellant on follow-up 7 days later of his advice of a CT scan, showing that he did not consider there to be immediate urgency in having the scan.  This is cogent evidence against a finding that the Appellant should have conducted tests immediately, and shows that a senior doctor of the same specialty was content with the Appellant’s clinical management.  This is relevant under the Bolam test.  The fact that Dr van Langenberg did not give evidence before the Council is not a valid reason for refusing to consider his actions, for the Council has a duty to make due inquiry and a power to summon witnesses.

(2)  The Council ignored Dr Lam’s evidence that in a surgical clinic, one does not routinely take temperature or blood pressure, and also ignored the fact that there was no indication (from the Patient or the thorough physical examination by the Appellant)  of fever, tachycardia or hypotension.

(3)  Intra-abdominal infection is a surgical site infection arising from an abdominal operation.  It follows that the Patient’s condition on 18 November 2015 had to be considered in the light of the nature of the operation and the history of treatment afterwards.  But the Council took the evidence of Dr Lam on surgical site infection out of context, ignoring his evidence that the Appellant’s management of the Patient included good source control, coupled with good recovery and adequate initial antibiotics, all of which added up to peace of mind for the Appellant.

(4)  The Appellant properly adopted the management by a course of empirical antibiotics with follow-up in 7 days.  If the Patient’s condition changed, there would be an opportunity for the Appellant to review his treatment and order such tests as required.  This incremental approach paid off, for the Patient did not even have tenderness upon follow-up on 25 November. 

(5)  The Council’s opinion that the Appellant’s prescription of antibiotics was inappropriate had no evidential basis and contradicted applicable guidelines.  Further, prescription of antibiotics was not part of the Secretary’s case as opened or Dr Poon’s report.

79.  We shall deal with these arguments in turn.

80.  As regards Dr van Langenberg, the Council clearly took note of his clinical records and actions, which were referred to in the Decision.  On the Appellant’s reliance on what Dr van Langenberg did or did not do, the Council said this in its Decision (at §70):

“ The Defendant claimed that Dr Langenberg saw the Patient on 18 November 2015, yet Dr Langenberg also did not do any clinical examination or investigations. We must say that this inquiry is not about the conduct of Dr Langenberg. We do not have the full information as to what was provided to Dr Langenberg at the material time. Without Dr Langenberg’s giving evidence before us, we are not in any position to judge, simply based on the documents provided to us, the correctness or otherwise of Dr Langenberg’s action or inaction.”

81.  We do not agree with the Appellant that there is a fundamental error in the Council’s approach.  Dr van Langenberg played a different role to the Appellant: he had retired from performing surgery and was not the clinician-in-charge but only providing a second opinion.  The Council did not have full information on what was provided to Dr van Langenberg at the time and, other than making available his clinical notes and letters, he did not give any oral or written evidence, nor was he represented in the inquiry.  The Council had no information on the rationale and reasoning behind his actions.  In these circumstances, the Council cannot in our view be faulted for saying that it was not in a position to judge the correctness or otherwise of Dr van Langenberg’s action or inaction. 

82.  Nor can the Council be criticised for not itself calling Dr van Langenberg to give evidence. The statute (section 21(2)  of the Medical Registration Ordinance)  provides that an inquiry panel may impose disciplinary sanctions on a doctor if it is satisfied, after “due inquiry”, that the doctor has been, inter alia, guilty of misconduct in any professional respect.  But due inquiry does not mean the Council must itself carry out an investigation and inquisition.  “Due inquiry” is defined in section 21(2)  to mean an inquiry by an inquiry panel conducted substantially in accordance with procedure prescribed by regulations made under section 33.  The relevant regulations are contained in the Medical Practitioners (Registration and Disciplinary Procedure)  Regulation (Cap 161E). Section 25(1)  of that Regulation sets out the order of procedure, under which the Secretary shall present the case against the defendant and adduce evidence in support thereof, and the defendant may then adduce evidence in support of his case and address the inquiry panel, followed by the Secretary’s address in reply and, finally, the defendant’s reply.  Witnesses are generally examined by the party calling them and then cross-examined by the other party: see section 31(3)  of the Regulation.  The procedure laid down thus envisages the parties themselves adducing the evidence they wish to rely upon.  Whilst the inquiry panel has power to summon witnesses (section 22(1)(b)  of the Ordinance), counsel have cited no authority that suggests it has a duty to do so. Mr Neoh SC refers to Darren Vivian Mann v Medical Council of Hong Kong (HCAL 21/2007, 2 October 2007), at §60, where Fung J spoke of the proceedings in any inquiry before the Council being “inquisitorial in nature”.  But his Lordship was there emphasising that the inquiry was not an adversarial dispute between the complainant and the defendant; he was not suggesting that the Council should take over the conduct of the proceedings from the Secretary and the defendant.  In the present case the Appellant knew the Secretary was not going to call Dr van Langenberg.  It was open to the Appellant to call him and, if he was unwilling to testify, to apply to the Council to exercise its power to summon him.  The Appellant did not do so.

83.  If, as the Council said, it was not in the circumstances in a position to judge the correctness or otherwise of Dr van Langenberg’s action or inaction, then it seems to us that it was entitled not to place weight on his action or inaction for the purposes of assessing the Appellant’s management of the Patient.

84.  It also follows that Dr van Langenberg’s management can have little relevance under the Bolam test.  The principle, stemming from the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, is that a doctor should not be held negligent if he has acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice: Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 2 AC 871, 881.  The principle is relevant not only to civil liability for negligence but also the question of professional misconduct: Dr Chan Po Sum v Medical Council of Hong Kong [2015] 1 HKLRD 330, §§39, 52.  But before it comes into play, the tribunal has to be satisfied that the practice in question is supported by a body of professional opinion, which may be described as responsible, respectable or reasonable and has a logical basis: Bolitho v City and Hackney Health Authority [1998] AC 232 at 241-242.  In the present case, what a single other doctor did or did not do, in circumstances where the Council was not in a position to assess the correctness or otherwise of the action or inaction, can hardly be said to constitute a responsible body of medical opinion supporting the Appellant’s management.

85.  Further and in any event, as mentioned above, Dr van Langenberg actually suspected there was abscess and advised a CT scan soon, emphasising it with the sign ‘**’ in his notes, which clearly differed from the Appellant’s management.  There was little dispute that if abscess was suspected there ought to be investigation.

86.  The Appellant’s second point is that the Council ignored Dr Lam’s evidence that in a surgical clinic, one does not routinely take temperature or blood pressure, and also ignored the fact that there was no indication of fever, tachycardia or hypotension.  With respect, this argument has no basis. The fact that the Council differed from Dr Lam does not imply that his evidence was ignored.  As Cheung CJHC said in Dr Fung Yee Leung Wilson v Medical Council of Hong Kong [2018] HKCA 393 at §37:

“ It must be remembered that a tribunal of fact is not obliged to set out all facts and evidence pertaining to a factual dispute in its judgment or decision. This would be an impossible task. This court does not easily accept that a tribunal of fact, including a professional tribunal like the Medical Council, has forgotten any material or relevant evidence placed before it, unless there is good reason to doubt it.”

87.  Dr Lam stated that in an HA clinic or hospital, the nurses take the patients’ temperature as a routine, but this is not done in private practice unless the patient mentions fever.[53] He also said that surgeons, even in surgical departments in HA institutions, do not routinely take temperature.[54]  However, the Patient’s case was not a routine one: the Council noted that he had had a heavily contaminated operation on 25 October 2015 and the presence of pain/tenderness indicated possible post-operative complication, leading to suspicion of intra-abdominal infection.[55]  Dr Lam accepted that if there was enough suspicion, temperature should be taken; and if there was more suspicion, blood tests should be taken.[56]  There is nothing to show that the Council ignored his evidence.

88.  The argument that there was no indication of fever, tachycardia or hypotension is likewise of little force.  The Council was entitled to take the view that there was sufficient reason to take the temperature, pulse and blood pressure given the history and the presence of pain/tenderness.  This is the kind of judgment turning on technical questions in the practice of medicine that the Council is particularly well-equipped to make.  There is no basis for this court to impugn its conclusions.

89.  The third point is the complaint that the Council took the evidence of Dr Lam on surgical site infection out of context and ignored his evidence on the nature of the operation and the Patient’s treatment history.  Essentially it is said that the Council should have taken into account Dr Lam’s opinion that the operation on 25 October 2015, as a source control operation, was successful.  The fever came down very quickly and the pain also subsided.  The Patient completed the antibiotics course and progressed well, and was discharged on 3 November in a very stable condition.  That process, counsel submit, was “text-book perfect”.  All this shows that the risk of treatment failure was very low and gave comfort to the Appellant as the treating doctor.

90.  We are not persuaded that the Council committed any error in this connection.  As mentioned above, it does not follow from the fact that particular parts of the evidence are not mentioned in a decision that the Council has forgotten or ignored them.  The argument boils down to a contention that given the source control operation on 25 October 2015 was successful and there was good progress and recovery post-operation up to discharge, the Appellant should not be faulted for failing to conduct further tests and investigation at the first post-operative consultation on 18 November.

91.  The Council was aware that the Patient recovered after the operation on 25 October 2015, noting that fever and pain subsided, and that he was discharged on 3 November.[57]  But no matter how successful that operation was, the fact was that the Patient had abdomen pain/discomfort on the day after discharge and went to an out-patient clinic for analgesic, and at the consultation with the Appellant on 18 November, he complained of on-and-off abdomen pain and the Appellant detected tenderness in the left upper quadrant, which was not the wound site. The Appellant’s oral evidence that the tenderness was only “slight” was disbelieved.  The Appellant himself said in his submission to the PIC that his clinical diagnosis at that time was possible residual intra-abdominal infection that lasted from the surgery on 25 October.[58] His later evidence that his diagnosis was possible mild intra-abdominal infection and that post-operative delayed wound infection or muscle strain could not be ruled out,[59] was also disbelieved.  The Council did not think that wound infection, wound inflammation and infection of muscle even crossed the Appellant’s mind on 18 November 2015.[60] 

92.  On these facts, whether the Appellant should have conducted further investigation (such as blood tests and/or CT scan)  is quintessentially a matter of clinical judgment and practice which the Council as a specialist panel was best placed to assess.  Likewise, whether the Appellant fell below professional standards by failing to conduct such investigation is also a question that the Council, comprising a majority of professional members, is uniquely qualified to judge.  The conclusions the Council came to were open to it on the evidence available.  There is no error that entitles this court to intervene.

93.  The next point simply reiterates the Appellant’s argument before the Council that his management of the Patient was proper and adequate, and that his incremental approach paid off as the Patient’s symptoms had disappeared at the next consultation on 25 November 2015.  In our view, the Council was entitled to focus on the management in light of the risks involved.  It was not bound to accept the Appellant’s management as proper simply because the Patient’s condition in fact improved.  The Council said it was “only fortunate” that the Patient’s condition did not further worsen.[61]

94.  The last point concerns the Council’s finding that the Appellant’s prescription of antibiotics was inappropriate.  The Council stated in its Decision at §68:

“ We further take the view that the prescription of these two oral antibiotics were not appropriate because they could hardly kill the bacteria that grew in the previous culture or hospital acquired intra-abdominal infections. The Defendant ought to have confirmed the diagnosis before deciding what type of treatment was appropriate, but he had not done so. The Defendant did not follow the principle of prescribing antibiotics.”

95.  In his evidence-in-chief, Dr Lam relied on the guidelines in The Surgical Infection Society Revised Guidelines on the Management of Intra-Abdominal Infection (see §76 above), which state (at p 49):

“ The consensus of the taskforces that continuation of previous antimicrobial therapy is appropriate in most patients with [intra-abdominal infection] who experience early treatment failure. Broader-spectrum empiric antimicrobial therapy, however, tailored to the expected risk of persistent pathogens, should be provided to patients with late treatment failure; if feasible, a switch in the class of antibiotic agents being administered should be considered.”

96.  When questioned by the Council, Dr Lam accepted that the principle of empirical antibiotics therapy is to cover the possible expected organisms/bacteria.  The point is to cover the organisms/bacteria expected, not to cover as many as possible.  The guidelines above also counsel that the therapy should be “tailored to the expected risk”.  So, in itself, a broader spectrum of antibiotics does not mean it is necessarily more appropriate.  Dr Lam also accepted that the organisms/bacteria targeted by the broad spectrum antibiotics prescribed by the Appellant were those from the bowel, rather than those found in a hospital-acquired infection.[62] The Appellant himself accepted during his testimony that he could not be sure whether the empirical antibiotics prescribed would cover the left-over organisms not cultured previously.[63]  Given the evidence available, we are unable to accept that the Council’s finding lacks evidential basis or contradicts any applicable guidelines.

97.  Nor do we accept there is any substance in the argument that the prescription of antibiotics was not part of the Secretary’s case as opened or Dr Poon’s report.  Dr Poon referred to the Appellant’s management by a further course of antibiotics and close clinical monitoring with 1-week follow up, but concluded it was inappropriate.[64] The point made by the Council in saying that the Appellant did not follow the principle of prescribing antibiotics is that there was inadequate investigation to decide the treatment to be prescribed, which was the crux of the complaint in charge A.

(5)  Conclusion on charge A

98.  For the above reasons, we consider that no ground has been established to justify intervention by this court in respect of charge A.  In particular it has not been demonstrated that the Council’s findings of fact were plainly wrong or that it was not entitled to find that the Appellant’s management of the Patient on 18 November 2015 fell below professional standards by failing to take appropriate or adequate investigation.

I.  Charge B

(1)  Whether the Council erred in finding the Appellant should have considered the possibility of an RSI

99.  It is submitted on behalf of the Appellant that the Council erred in finding that the Appellant should have considered the possibility the suspected foreign object was an RSI, for that was never part of the Secretary’s case.  We reject this submission.  Dr Poon’s first report expressly stated: “Since the CT report specifically pointed out the absence of foreign body in September 2015, there should be suspicion on procedure-related foreign body retention.”[65] This is a clear allegation the Appellant should have considered the possibility of RSI.  The possibility of RSI and the management in light of such possibility were extensively canvassed in the examination of both experts during the inquiry.

100.  Reliance is also placed on the statement in the CT Report that the hyperdense to metallic material was noted “inside the dilated jejunum” and the suggestion of “ingested foreign body”, and on the fact that none of the many doctors who saw the Patient between November 2015 and July 2016 detected or suspected an RSI until 30 July 2016 when Dr van Langenberg saw the GE Films (which the Appellant did not see)  and noted “?? possible retained gauze ?”.  We do not think these matters invalidate the Council’s decision.  The Council did not say that one should immediately have come to the conclusion that there was RSI, but that the possibility should be considered and this differential diagnosis should be borne in mind, warranting an X-ray to be ordered immediately.[66]  The CT Report contained a question mark next to “ingested foreign body”, meaning that the radiologist stated a query, not a conclusion.  The Referral Letter recorded there was “no history of ingestion of foreign body”.  The Council found as a fact that the Appellant did not ask the Patient for history of ingestion, which means that he himself did not believe the possibility that the foreign body was ingested was high.[67]  The Patient had had multiple abdominal operations in 2015.  The CT Report recorded “hyperdense to metallic materials is noted”, and Dr Poon’s evidence was that surgeons would be particularly sensitive to the presence of metallic material in the body, which suggests surgical instruments.[68]  As for the fact that no doctor had suggested RSI before, it should be noted that the CT Report was only available from 22 July 2016.  Dr Chu, the radiologist responsible, made clear in the report that it required urgent attention.  Dr Shum issued the Referral Letter recommending priority because of “Alarming symptom /sign /investigation results” and admission to Surgery for further investigation.

101.  On these materials there is no proper basis for this court to disturb the Council’s finding that the possibility of RSI should be considered and that a specialist in General Surgery should have this differential diagnosis in mind.

(2)  Whether the Patient had a life-threatening condition and whether an X-ray and removal operation were required immediately

102.  It is contended that insofar as the Council said the Patient had a life-threatening condition which required immediate hospitalisation and operation for removal of the foreign object, this is a finding with no evidence in support.  The Patient was clinically stable when examined by the Appellant, as Dr Poon agreed.  The colostomy was working.  Dr Shum’s Referral Letter indicated “BS +ve. colostomy functioning”.[69]  Dr Poon suggested immediate hospitalisation because that would afford facilities for investigation and an operation.  But it was prudent first to find out what was the nature of the suspected foreign object (which the GE would achieve with the scout film)  and then decide, rather than to immediately operate to remove.  The CT Report called for “clinical correlation” and the Referral Letter called for admission for further investigation, rather than immediate operation.  Neither Dr van Langenberg nor Prof Law (even with the GE Films)  immediately put the Patient into hospital.

103.  We do not accept that there was no evidential basis for the Council’s conclusion.  There were 3 abnormal findings in the CT Report: the presence of foreign body, obstruction, and inflammation.  Both experts agreed that the finding of obstruction was particularly alarming.  The Council was entitled to find, as it did, that there was a high possibility it was the foreign body that caused the partial obstruction and inflammation, because the CT scan suggested the foreign body might have caused erosion to the wall of the bowel.[70] Dr Poon said the Patient should be immediately hospitalised.  Dr Lam disagreed and thought the possibility of RSI was remote, but nevertheless accepted that RSI is a high-risk condition and warrants immediate attention and that if the diagnosis was possible RSI, then a responsible surgeon should have taken steps to remove the object as soon as possible, and neither GE nor closure of colostomy would be appropriate.[71]  There is nothing to show that the Council “ignored” the fact that the Patient was clinically stable and that the colostomy was normal.  It is obvious that the Council simply did not agree that in the light of the CT Report and the Referral Letter, the relative stability in the Patient’s clinical condition was sufficient to justify the Appellant’s conduct.  This does not provide any ground for this court to intervene.

104.  The Appellant also relies on Dr van Langenberg’s and Prof Law’s management of the Patient.  The Patient saw Dr van Langenberg on 27 July 2016, immediately after consulting the Appellant.  Reliance is placed on the fact that he did not object to the GE, and he only recorded, in a diagram, the note “area of induration, tender ++” next to the location of transverse colostomy.  (The Daughter’s evidence was that Dr van Langenberg did not actually agree with the GE, though he did not think it would do any harm, and left it to the Patient to decide.)  After seeing the GE Films (not seen by the Appellant), at the consultation of 30 July 2016, Dr van Langenberg arranged an X-ray to be done the following Monday, 1 August, and referred the Patient to Prof Law. The Appellant also relies on the fact that after seeing the Patient on 3 August 2016, Prof Law did not immediately admit him into hospital, but only scheduled admission on 17 August for operation, which was only brought forward to 6 August when the Patient’s condition deteriorated over 4-5 August.  It is said that the management by these 2 other senior doctors shows that the Patient was clinically stable with no life-threatening condition at least up to 3 August and that the Council committed a fundamental error in disregarding or refusing to consider their actions.

105.  Neither Dr van Langenberg nor Prof Law gave evidence.  Prof Law’s notes were not even produced as evidence in the inquiry.  The Council did not have any information about the reasons or rationale of their conduct.  The Council said (at §101 of the Decision):

“ The Defendant similarly claimed that Dr Langenberg and Professor Law, who subsequently saw the Patient, did not immediately hospitalize the Patient. This inquiry is not about the conduct of Dr Langenberg and/or Professor Law. We do not have the full information as to what was available to Dr Langenberg and/or to Professor Law at the material time. Without Dr Langenberg’s and Professor Law’s giving evidence before us, we are not in any position to judge, simply based on the documents provided to us, the correctness or otherwise of their action or inaction.”

106.  We refer to our discussion of the same point in the context of charge A in §§81-84 above.  For the same reasons, we do not think this point provides a valid ground of appeal in respect of charge B. It may be noted that in fact, the Patient suffered rapid deterioration in his condition on 4‑5 August, necessitating an emergency operation on 6 August.  In all the circumstances, the Council was entitled not to place weight on the action or inaction of these two doctors in assessing the conduct of the Appellant.

107.  It is also submitted for the Appellant that insofar as the Council said an X-ray should be ordered immediately to investigate the foreign object, it was the reasonable expectation of the Appellant (and Dr Poon agreed)  that the GE scheduled for the very next day (28 July), with an X-ray of the abdomen producing a scout film, would pick it up.

108.  The Council did not think that the scheduled GE exonerated the Appellant.  First, the Appellant and Dr Lam accepted that GE is not intended to investigate a foreign body, and the Council said that it was wrong in principle for the Appellant to use GE to investigate the foreign body.[72]  There is nothing to challenge this opinion.  The fact that X-rays taken in the GE might incidentally detect the foreign object does not undermine the Council’s point. Secondly, the Council did not accept as a matter of fact that the Appellant intended the scheduled GE to serve the additional purpose of investigating the foreign body.  The Appellant’s evidence was that at the consultation on 27 July 2016, he told the Patient / Daughter that one of the purposes of the GE was to investigate the foreign body.  In contrast, the Daughter’s version was that the Appellant told them: (i)  even one ton of swallowed gold could be passed out; (ii)  since the area concerned had been “dealt with” by other doctors, it could have been other doctors who had left something behind; and (iii)  he did not care about what others had done and would only deal with the closure of colostomy.  This evidence was not challenged in the Daughter’s examination.  The Council also reasoned that if the Appellant had intended to use the GE to investigate the foreign body, he would have made an effort to ensure that this additional purpose and the Patient’s clinical condition (i.e. possibility of foreign object causing obstruction and inflammation)  were brought to the attention of the radiologist, but he did not.  The Council further took note that the Appellant advised the Daughter via his nurse on the night of 28 July 2016 to proceed with closure of colostomy, based on the GE Report which made no mention of any foreign object, without seeing the GE Films himself.  The Council considered that this also militated against the suggestion that the Appellant had intended to use the GE for the additional purpose of investigating the foreign object.  The Council found it “very hard to believe” (i.e. it did not believe)  that the Appellant had the intention to use the GE for the additional purpose of investigating the foreign body.[73] There is in our view no ground to challenge this factual finding based on evidence which the Council was particularly well-placed to assess.

(3)  Whether the Appellant should have rung up the radiologist at HKSH

109.  It is submitted on behalf of the Appellant that the Council erred in finding that the Appellant should have rung up the radiologist at HKSH before the GE.  It is said that the Council misrepresented Dr Lam’s evidence in saying that he would prefer to ring up the radiologist.

110.  In our view there is nothing in this point.  The Secretary did not suggest it was in itself professional misconduct for the Appellant not to have called the radiologist who was going to do the GE. Instead, the point arose because the Appellant said the GE could be expected to detect any foreign body present in the abdomen.  It is in this context that the Council said if it was really the case that the Appellant intended to use GE to investigate the foreign body, it would expect the Appellant to have contacted the radiologist by himself or via his nurse to relay the request and the Patient’s clinical condition.[74] This is the type of reasoning that the Council, with its specialist knowledge of medical practice, is well placed to employ.  Even though HKSH might have had standard protocol in place requiring patients to bring their previous medical records before taking the GE, the fact that the Appellant did not communicate the alleged additional purpose to the radiologist is clearly a factor the Council could take into account in making its finding on the Appellant’s intention. 

111.  Nor do we accept that there was any misrepresentation of Dr Lam’s evidence.  His evidence was that he would call up the radiologist if he was worried about something special such as there was a leakage after an operation resulting in a life or death situation.[75] The Council was entitled to reason that the Appellant should have alerted the radiologist if there was an additional purpose to be served by the GE and not simply rested on the expectation that the Patient would bring along his medical records including the CT Report and the Referral Letter.

(4)  Whether the Appellant should have waited for the GE Films before advising the Daughter

112.  It is also submitted that the Council erred in finding that the Appellant should not have advised the Daughter with only the GE Report (on the night of 28 July 2016)  but should have waited for the GE Films. 

113.  Again, it was not the Secretary’s case that it was professional misconduct in itself to advise the Patient on the basis of the GE Report without the films.  The point arose because the Appellant said that he had intended to use the GE for the additional purpose of investigating the foreign body.  The Council reasoned that if that was the case, then after receiving the GE Report which made no mention at all of any foreign object, the Appellant should have waited for the GE Films before advising the Daughter or at least qualified his advice pending his review of the films.  The fact that he did neither was evidence against the alleged additional purpose.[76] We can see nothing wrong in this reasoning, which the Council, comprising (amongst others)  senior medical practitioners, was particularly qualified to adopt.  The Appellant’s argument that he had a reasonable expectation that the GE Films would come to him in the usual course does not impinge on this conclusion.

114.  The case of Dr Lwin Winnie (Disciplinary Inquiry, 10 February 2012)  cited by the Appellant does not support any contention that he was entitled to rely on the expertise of the radiologist to the extent that he could advise the Patient based on the report without the films.  On the contrary, the Council said in that case (at §21)  that the referring doctor should also review the film:

“ In radiological investigation, the proper arrangement is that after the reporting doctor has issued the X-ray report both the X-ray film and the X-ray report are sent to the referring doctor. The referring doctor will then review the film taking into consideration the reporting doctor’s opinion set out in the report. This two-stage arrangement is a check and balance mechanism to minimise missing of suspicious abnormalities.”

115.  Accordingly, this point does not provide any ground for impugning the Council’s decision.

(5)  Whether the GE was in any event improper and inadequate

116.  It is submitted that the Council erred in holding that even if the GE was intended to serve the additional purpose of investigating the foreign body, it was still improper and inadequate because the Appellant should have taken steps to remove the foreign body as soon as possible. 

117.  It is argued that this holding was based on a fiction that the Appellant had control over the management of the Patient, which he had not had since the GE Films were removed by the family who then consulted Dr van Langenberg.  We do not think this is a valid criticism.  The Council’s finding was concerned with the Appellant’s actions on 27 July 2016.  It considered that sending the Patient to GE the next day was improper and inadequate.  This point therefore adds nothing of substance to the arguments already discussed above.

118.  It may be noted that although, as it transpired, the foreign body was actually captured in the GE Films, it was missed by the radiologist (who had not been alerted by the Appellant to investigate any possible foreign body)  and it was also missed by the Appellant because he advised the Patient to proceed to closure of colostomy based only on the GE Report without the films, and the Patient decided to go elsewhere.

(6)  Conclusion on charge B

119.  For the above reasons, there is no basis to think that the Council’s findings of fact are plainly wrong or that its findings on what expected professional standards required are erroneous or unjustified.  It follows that the Appellant has failed to establish any ground that allows this court to intervene in the Decision.

J.  Sentence

120.  On sentence, it is submitted for the Appellant that the removal order is wrong in principle and manifestly excessive.  Further, the Council unfairly relied on concerns that the Patient was placed at risk of a life-threatening situation, that the Appellant did not put the Patient’s well-being as the top priority, and that the Appellant did not follow the basic principles of antibiotic prescription, none of which was stated in either charge.  In particular, the allegation that the Appellant did not put the Patient’s well-being as the top priority is an allegation of dishonesty and/or breach of fiduciary duty far more serious than the actual charges.  The sentence imposed would deprive his patients now and in future of the services of an experienced surgeon.

121.  We have carefully considered the matters raised on behalf of the Appellant but are not persuaded that we are entitled to interfere with the sanction imposed.  We have set out the proper approach of the appellate court above (at §59).

122.  We do not accept the argument that the Patient was sentenced for something he had not been charged with.  That the Patient was placed at risk of a life-threatening situation and that closure of the colostomy rather than the Patient’s well-being was given higher priority, were the effects of the Appellant’s conduct viewed objectively, as found by the Council.  We do not think there was any suggestion that the Appellant deliberately brought about such results.  There is no question of any dishonesty or breach of fiduciary duty being found.  Failure to follow the principles of antibiotic prescription was mentioned by the Council, together with failure to follow the basic diagnostic principles, as aspects of the failure to investigate into the condition of the Patient, which lay at the heart of charge A.

123.  The Council properly bore in mind the need to protect the public and maintain public confidence in the medical profession by upholding its high standards and good reputation.  It expressly noted that the Appellant had a clear disciplinary record.  There were placed before the Council letters from senior, eminent doctors speaking of the Appellant as a highly respected and accomplished surgeon and pleading for leniency on his behalf.  The Council stated it would give credit for the references as well as the Appellant’s contributions to the medical profession and to the public. 

124.  We have had regard to the sentencing precedents of the Council in the last 2 years placed before us.  We have likewise had regard to the references and materials in favour of the Appellant.  Nevertheless, in all the circumstances, we can see no proper ground for us to conclude that the sentences for removal were clearly wrong, inappropriate or unjustified.  Nor can we see any ground to interfere with the Council’s decision not to suspend the removal orders.

K.  Conclusion and orders

125.  We have closely examined the Decision, the arguments on this appeal and the relevant evidence.  The Appellant’s counsel have put forward everything that can be said on his behalf, but we have come to the conclusion, for the reasons set out above, that the Appellant’s appeal against the finding of professional misconduct in respect of both charges and his appeal against sentence are both unsuccessful and fall to be dismissed.

126.  The Appellant has to pay the Council’s costs of the appeal.