LAM KWOK LEUNG v. THE MEDICAL COUNCIL OF HONG KONG

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J U D G M E N T

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Sir Derek Cons, V.P.:

1. At 5:15 p.m. on the 18th June 1989 one Leung Hung Piu was observed by the police to be selling in the Yuen Long Estate what they thought to be dangerous drugs. He was arrested aid found in his possession was a quantity of Wellcome F3A.

2. Leung was at the time a patient of a doctor Lam Kwok Leung ("the Doctor") who since 13th December the year before had on many occasions prescribed and supplied to him Wellcome F3A and on two occasions Methadone. The Wellcome F3A that was found on Leung had almost certainly come from the Doctor, although that is a matter of no materiality.

3. That evening a police constable called on the Doctor and recorded a statement signed by him in which' were set out the individual occasions on which Leung had consulted the Doctor, what he had on each time prescribed and supplied and why he had done so.

4. In due course Leung was charged in Tuen Mun Magistracy His trial, delayed for various reasons, did not take place until the 22nd May The Doctor gave. evidence to the prosecution on the lines of the statement recorded by the police constable in January. After three days of hearing Leung was convicted of trafficking-in dangerous drugs, possessing dangerous drugs for the purpose of unlawful trafficking and unauthorised selling of Part I poison.

5. Subsequently questions were raised with the Medical Council of Hong Kong and as a result of what must have been communication between the Council and the Doctor he forwarded on the 30th March 1990 what his solicitors called "a set of written submissions" regarding the matter.

6. On the 1st May following the Council wrote to the Doctor advising him that an inquiry was to be held into the following charge:

"That you, being a registered medical practitioner, did, on divers dates between 13 December 1988 and 17 January 1989, prescribe or supply drugs of addiction or dependence namely 785 tablets of Wellcome F3A and 22 tablets of Methadone otherwise than in the course of bona fide treatment to a person, namely Mr. Leung Hung-piu, contrary to Section 4 of the Warning Notice of the Medical Council of Hong Kong and in relation to the facts alleged you have been guilty of misconduct in a professional respect."

7. The hearing of the inquiry was set for the 1st November. It was not in fact held on that day but on the 2nd December. The Doctor was represented by Mr. Chain of counsel; Ms. Hartstein presented the case against him; and Mr. Nauta acted as legal adviser to the Council.

8. The evidence against the Doctor was solely documentary, there being put before the Council:

(1) the statement that the Doctor had made to the police constable on the 18th January 1989;

(2) a transcript of the trial of Leung in the magistrate's court including, of course, the evidence of the Doctor;

(3) the medical records that the Doctor kept in respect of Leung;

(4) the annual returns submitted by the Doctor to the Director of Health with regard to dangerous drugs for the years 1989 and 1990; and

(5) the written submissions that the Doctor had forwarded earlier to the Medical Council.

9. Before "retiring" to read and consider these documents the chairman of the Council asked:

"Does the defendant wish to submit that sufficient evidence has not been adduced upon which the Council can find that the facts alleged in the charge have been proved; or that the facts alleged in the charge are not such as to constitute the offence charged?"

Mr. Chain replied in the negative.

10. I put the word "retiring" in inverted commas because the nature of the accommodation for the inquiry was such that the Council did not itself retire, but all those appearing before it did so, leaving the Council in the room alone.

11. On the Council's "return" the Doctor elected to give evidence, was examined by his own counsel, cross-examined by Ms. Hartstein and then members of the Council put questions to him themselves. Submissions by Ms. Hartstein and by Mr. Chain followed.

12. The Council retired for the second time to consider their decision which, when they returned, was given in these words:

" The decision of the Council is that the facts alleged against Doctor Lam Kwok-leung, David in the Notice of Inquiry have been proved to the satisfaction of the Council and that he is guilty of the offence charged."

13. Just prior to the announcement of the decision Mr. Nauta had informed those present:

" Advice was sought by the Council on the standards of proof and I advised the Council that the standard of proof is the civil standard based on the balance of probabilities but the standard is a flexible one so that the degree of probability is proportionate to the nature and gravity of the offence, in other words a sliding scale which may approach the criminal standard."

14. He did so in conformity with Regulation 33(1) of the Medical Practitioners Registration and Disciplinary Procedure Regulations. Having regard to Sub-regulation (2) we may assume that his advice was accepted.

15. The Doctor appeals to this Court, his notice of appeal containing two grounds:

"(a) That there was no or no sufficient evidence upon which the Medical Council could make the aforesaid decision;

(b) That the legal adviser to the Medical Council erred in advising the Medical Council that the burden of proof is the civil standard and accordingly the Medical Council erred in applying the wrong standard in making the decision as it did."

16. As we understand it now the second ground is put in a somewhat different way. Complaint is no longer made of the direction given by the legal adviser, but it is suggested that the Council must have mis-applied his advice. The suggestion is based on the submission that because the Council imposed what is apparently a very light sentence for an offence of this nature they must have taken a very light view of the offence itself and accordingly applied a standard of perhaps little more than mere balance of probability.

17. As with the decision itself, no reasons are given for the sentence imposed by the Council although mitigation was put forward on his behalf. For my part I am not prepared to draw the conclusion suggested. It does not in my view necessarily, or even having regard to all the circumstances probably, follow from the premises suggested.

18. I turn then to the alternative ground, that there was no or no sufficient evidence upon which the Council could properly make the aforesaid decision. In the course of her submission on this point Miss Leong, who now appears for the Doctor, has suggested other evidence that might perhaps have been called, namely Leung or the constable who recorded the statement, about which there had been some dispute in the cross-examination of the Doctor.

19. What evidence is put before the Council is a matter for counsel who is in charge on their behalf. We are concerned only with the evidence that was in fact called when considering whether it was sufficient to support the decision to which the Council came. In the present instance it was the treatment itself which was called in question, whether it was bona fide or not. As to that, in my view, the Council could not have been better informed. They had full details of all the treatment, all the times on which Leung consulted the Doctor, the tablets prescribed and supplied and the explanation given for each occasion by the Doctor. These are matters on which the Council, being themselves doctors, are the best judges. In my view there was ample evidence on which they could come to their decision.

20. For these reasons I would dismiss the appeal.

Penlington, J.A.:

21. I would also dismiss this appeal. There was evidence before the magistrate given by the Doctor which was produced to the Council. For instance, between the 28th December 1988 and the 9th January 1989 he prescribed some 365 tablets which is about 30 per day. He sought to justify that on the basis that he had been told that tablets had been lost in the laundry and some had been stolen. The Council were quite entitled to look on that explanation with considerable scepticism. It seems to me that the advice given to the Council by the legal adviser as to the standard of proof was perfectly correct and I do not see that, in the light of that, the decision that they had reached calls in any way for our intervention.

Godfrey, J.:

22. I agree that this appeal must be dismissed. It is an appeal from a decision of the Medical Council of Hong Kong constituted under the Medical Registration Ordinance, Cap. 161, and, in cases of this sort, it is not the practice of the Council to give reasons for the decision at which it arrives. That is from the point of view of the appellant in this case unsatisfactory, but there it is. In cases of this sort we are faced with a difficulty because there is nothing we can review other than the evidence itself. In those circumstances it is difficult for us to displace a finding or order of the committee unless we can be shown that something was clearly wrong either

(1) in the conduct of the hearing or

(2) in the legal principle applied or

(3) unless it can be shown that the findings of the Council were sufficiently out of tune with the evidence to indicate, with reason able certainty, that the evidence had been mis-read,

see Libman v. General Medical Council [1972] Appeal Cases 217 per Lord Hailsham at p. 221 E to F.

23. As has been recently pointed by Lord Templeman in Carmichael v. General Dental Council [1990] 1 WLR 134:

"The Board can only interfere with the finding of fact by the Committee if the determination was not supported by credible evidence or if the weight of the evidence was overwhelmingly against the view taken by the Committee."

24. Applying these principles to the instant case it can immediately be seen that the task of the appellant here was more than it was possible for his counsel, ably as she has tried, to discharge.

25. For these reasons I agree with my Lords and, as I have said, I would also dismiss this appeal.

Sir Derek Cons, V.P.:

26. The appeal accordingly is dismissed.