DR CHAN MEI-YING, MARIA v. THE MEDICAL COUNCIL OF HONG KONG

IN THE COURT OF APPEAL

1994, No. 177

(Civil)

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J U D G M E N T

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Nazareth V-P:

1. On 2nd September 1994 the Medical Council of Hong Kong found the appellant guilty of the first of two charges of misconduct in a professional capacity and ordered her name to be removed from the medical register for six months. She now appeals against that finding and order.

2. The inquiry was held into the following two charges:

That on 16 July 1993 Dr Chan, Maria Mei-ying, being a registered medical practitioner, did disregard her professional responsibility to treat or care for your patient, namely Madam Lee Chung-oi, otherwise did neglect your professional duties to her, as referred to in paragraph 2 of Part II of the Warning Notice of the Medical Council of Hong Kong, in that you did:

(a) wrongly advise your patient to undergo an abortion; and

(b) refer your patient to a Dr Yeung for an abortion which was medically unjustified in all the circumstances and that in relation to the facts alleged, you have been guilty of misconduct in a professional respect.

3. The appellant did not appear in person. She submitted her evidence by affidavit and was represented by counsel.

4. The single ground of appeal relied upon is set out in the notice of appeal in the following way:

"(a) the only evidence adduced in support of the complaint was the evidence of the complainant herself (Madam LEE), whose credibility was accordingly paramount. At the conclusion of the hearing on 1st September 1993, the Council dismissed a second complaint by the same complainant arising out of the same incident wherein she alleged that the Appellant had referred Madam LEE to a Dr YEUNG for an abortion which was medically unjustified. Since that complaint (which was dismissed) similarly turned on the uncorroborated testimony of Madam LEE, it was inconsistent with the finding of guilt on the complaint, the subject of this appeal."

5. Mr Macrae, who appears before us for the appellant but did not appear before the Medical Council, pursues that ground upon the case of Durante (1972) 56 Cr.App.R. 708, to which I shall return.

6. The relevant evidence of Madam Lee was as follows. She had gone to see the appellant on 16th July 1993 because she was pregnant and wanted an examination. She had a number of complains including headaches, tiredness, abdominal pain, nausea and so forth. As Madam Lee herself put it "It was because I felt something wrong with me that I went to see (the appellant). A urine test was conducted confirming she was pregnant. Initially the appellant had congratulated her on her pregnancy but then Madam Lee gave the appellant her history, including the fact that she had had a chest x-ray, and she outlined her complaints. The appellant examined Madam Lee physically and then asked her whether, in view of the recent x-ray, she was worried about the baby's health. The appellant then, and this was disputed, advised Madam Lee to have an abortion to cure her own illness first, before having a baby. She also advised Madam Lee that she was suffering from diabetes and blocked muscles causing skin discolouration.

7. Madam Lee was asked in examination in chief what else had happened in the consultation room. At this point, it is helpful to go to the Questions and Answers:

"Madam Lee : After going through all the procedures she advised me to have an abortion and she asked me if I knew any doctors, registered doctors, who can perform the abortion and she also said that she had a registered doctor that she can refer me to.

Legal Officer: So what did you say?

Madam Lee: I answered in the negative and then she introduced - she said that she can introduce me a registered doctor for doing the abortion. At that time I said that I did not know what to do and she suggested that she would ask Dr Yeung for me.

Legal Officer: Can you just pause there so that she can translate.

Madam Lee: And then she telephoned Dr Yeung and during the telephone conversation she told Dr Yeung that she had a patient, a lady patient and that the patient needed to have an abortion because she had had an x-ray and also because her health was not good.

...

Madam Lee: She said that the patient suffered from blocked muscle and diabetes. And she said that 'I don't think that she should have the baby and I want you to help her - to do an abortion for her'. And she asked Dr Yeung if he or she had time to do the operation and then there was a pause. I think Dr Yeung was asking her nurse to check if he had time to do the operation. And then she said that she would collect a deposit from me first and then the deposit would be returned to me later."

After the consultation, Madam Lee was provided with a referral letter which was produced at the inquiry. It made no mention of abortion.

8. Mr Macrae submits that the two charges are essentially the same. He analysed them in the following way. The first charge, he submits, consists of three elements: (i) Madam Lee was advised ; (ii) to undergo an abortion; and (iii) wrongly.

9. He analysed the second charge in the same way and said that (i) Madam Lee was referred to Dr Yeung; (ii) for an abortion; and (iii) which was medically unjustified in all the circumstances.

10. He submits on the face of it the charges were different in that (i) concerned the appellant's advice to the patient whilst (ii) concerned her referral of the patient. He submits that it was accepted by the appellant that she had referred Madam Lee to Dr Yeung. Therefore, Mr Macrae submits there was no issue as to this, and that it must follow that the Council convicted the appellant on the basis that she wrongly advised the patient to have an abortion and yet acquitted her on the basis that the Council was not satisfied that the appellant had referred the patient for an unjustified operation. He submits that once the fact of referral was not in dispute, there was no conceivable justification for convicting the appellant for wrongly advising an abortion. He submits the charges therefore stood or failed together. Either the evidence was misread by the Council or different burdens or standards of proof were applied. The verdicts, he submits, were so glaringly inconsistent as to meet the criminal test in Durante's case. That test, it has to be noted, was set out in the headnote in the following way:

"An appellant who seeks to obtain the quashing a conviction on the ground that the verdict of Guilty on a count on which he was convicted was inconsistent with a verdict of Not Guilty on another count has a burden cast upon him to show not merely that the verdicts on the two counts were inconsistent, but that they were so inconsistent as to call for interference by an appellate court."

It is helpful at this stage to refer also to the dicta in Kevin McCluskey (1994) 98 Cr.App.R., which was relied upon by Mr Whitehead, for the respondent. It was held, again by reference to the headnote, that

"... although the verdicts on manslaughter and affray were clearly inconsistent, the fact that two verdicts were shown to be logically inconsistent did not make the verdict complained of unsafe unless the only explanation for the inconsistency must or might be that the jury was confused and/or adopted the wrong approach."

11. Mr Whitehead submits that there was evidence that weighed specifically upon the second charge which he identified as follows:

(i) that Dr Yeung did not remember the conversation which the appellant had with him nor seeing the referral letter;

(ii) that the referral did not mention abortion; and

(iii) that no preparations for abortion were made.

These matters, he contended, would weigh particularly with the members of the Council, all of whom appear to have been medically qualified.

12. At the end of the day, it seems to me right to say that the verdict on the second count does prima facie suggests that the Council were not convinced of the credibility of Madam Lee. However, the question equally arises whether they were not convinced of the reliability of her evidence. When one has regard to the three items of evidence mentioned by Mr Whitehead, it seems to me that it is not possible to say that the verdicts were so inconsistent that the conviction should not be allowed to stand; or that no reasonable jury or council, as in this case, who have applied their minds properly could have arrived at the conclusion they did. The burden of showing that is on the appellant (see Durante at p. 714). Likewise, in the terms of McCluskey, I am not persuaded that the only explanation for the inconsistency must or might be that the Council was confused and/or adopted the wrong approach. Those conclusions are reinforced by the consideration that the Council could not have been unaware of the inconsistent nature of the two verdicts and must have nonetheless consciously proceeded to them.

13. Finally, as can be seen in Lord Hailsham's opinion in the Privy Council case of Libman v General Medical Council (1972) AC 217, the decisions of a disciplinary committee of this sort should not lightly be upset.

14. For the foregoing reasons, in my view, the appeal fails and must be dismissed.

Bokhary JA:

15. The charges against Dr Chan were that (a) she wrongly advised her patient, Madam Lee, to undergo an abortion, and (b) she referred that patient to Dr Yeung for an abortion which was medically unjustified for the circumstances. She was convicted on the advice charged but acquitted on the referral charge. Is the acquittal inconsistent with the conviction so that the former renders the latter unsafe or unsatisfactory?

16. It seems to me that Madam Lee's account of being directly advised by Dr Chan to undergo an abortion is inherently more reliable than her appreciation of the telephone conversation between Dr Chan and Dr Yeung being for the purpose of an abortion.

17. As to that conversation, Madam Lee only heard one of the doctors, namely Dr Chan. And if, as it is reasonably possible, her appreciation was faulty, that might well colour her understanding on what Dr Chan told her after that conversation as to the referral particularly its purpose.

18. Moreover, there was little if anything to cast out from Madam Lee's understanding of the advice given to her by Dr Chan. But when it comes to the referral, there is a referral letter which makes no mention of abortion. So there is that reason to doubt the reliability on Madam Lee's appreciation of what she heard or overheard of the telephone conversation between the two doctors and that what she was told after such conversation about the purpose of the referral.

19. That there should be different verdicts on the two charges is somewhat surprising. But whether the result surprising is not the test.

20. In my judgment, there is room for a rational conviction on the advice charge to exist side by side with a rational acquittal on the referral charge.

21. I, too, would dismiss this appeal. Doing so, with an expression of my indebtedness to counsel on both sides for the clarity and composition of their arguments.

Liu JA:

22. It is exceedingly difficult to satisfy any court that no reasonable Medical Council who had applied their minds properly to the facts in this case could have consistently returned the very two verdicts canvassed before us to-day. For the reasons given by my Lords, the Vice-President and Bokhary JA, the appellant fails to discharge that burden. The verdicts simply cannot be said to be necessarily inconsistent. That is obvious without any further elaboration. I, too, would dismiss this appeal.