DR IP DAVID v. THE MEDICAL COUNCIL OF HONG KONG

CACV 279/2020

[2022] HKCA 877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 279 OF 2020

(ON APPEAL FROM THE ORDER OF THE MEDICAL

COUNCIL OF HONG KONG MADE ON 23 JUNE 2020)

________________________

________________________

________________________

D E C I S I O N

________________________

Hon Cheung JA (giving the Decision of the Court) :

I.  Introduction

1.  This is an application by the appellant, Dr Ip David (‘Dr Ip’), for leave to adduce fresh evidence at the hearing of his appeal against sentence imposed on him in a decision of the Medical Council of Hong Kong (‘the Council’) dated 23 June 2020 (‘the Decision’). The Council in its Decision ordered, among other matters, that Dr Ip’s name be removed from the Specialist Register for a period of one month (‘the Removal Order’). We will deal with the application on paper.

II.  The Council’s Decision

2.  At the disciplinary inquiry Dr Ip was faced with three charges :

‘ The charges against the Defendant, Dr IP David are:

That on divers dates between May 2013 and September 2014, he, being a registered medical practitioner, disregarded his professional responsibility to his patient Ahmed Syed Faiz (“the Patient”) in that he:

(a) issued the following sick leave certificates to the Patient at Asia Medical Centre without proper care and/or justification and/or investigation:

[list of sick leave certificates, with their date of issuance and diagnosis]

(b) issued the following sick leave certificates to the Patient at Digital Healthcare Clinic without proper care and/or justification and/or investigation:

[list of sick leave certificates, with their date of issuance and diagnosis]

(c) failed to refer the patient to a specialist in Orthopaedics and Traumatology for further consultation and treatment when the circumstances so warranted.

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

3.  All the issued sick leave certificates were issued with a diagnosis of ‘Right Middle Finger Pain after Accidental Injury on Duty’ or ‘Right Middle Finger Accidental Injury on Duty’.

4.  We will refer to the above disciplinary charges, as Charges (a), (b) and (c) below.

5.  The Council set out in its Decision the background of the case :

‘ 4. By a letter dated 31 March 2015, the Labour Department complained to the Medical Council that the Defendant was “suspected of improper issuance of sick leave certificates”. Briefly stated, during the processing of 2 employees’ compensation claims lodged by the Patient, the Labour Department discovered that the Patient possessed 2 sets of sick leave certificates issued by the Defendant under the name of 2 different clinics but covering the same sick leave period. Since the diagnosis stated on each of the sick leave certificates was “Right Middle Finger Pain after Accidental Injury On Duty”, the Labour Department took the view that the Defendant should reasonably foresee that the Patient would make use of the same in lodging a double claim for employees’ compensation.

5. In response to the complaint, the Defendant explained to the Preliminary Investigation Committee (“PIC”) through his solicitors by letter dated 19 October 2016 that he practised at the 2 clinics involved in the complaint from 2013 to 2015, namely, at the Asia Medical Centre (“AMC”) in Yau Ma Tei until November 2014 and at the Digital Healthcare Clinic (“DHC”) in Sham Shui Po from 2014 to October 2015.

6. The Defendant’s solicitors also mentioned in the letter that:

“13. Dr Ip first saw this patient at AMC on 16 May 2013. The patient reported right middle finger pain after an accidental injury on duty on 10 September 2012.

.....

18. On 4 January 2014, Dr Ip saw the patient in the morning at AMC. That afternoon, Dr Ip was practising at DHC, and the patient re‑attended him there requesting further treatment. It was at this consultation that the patient explained to Dr Ip that he had two employers, neither of whom would accept copies of sick leave certificates, hence he needed an original sick leave certificate for each employer.

......

20. From 4 January 2014 onwards, until he was discharged by Dr Ip in September 2014, the patient saw Dr Ip intermittently at both clinics for treatment.

......

41. Dr Ip accepted in good faith the information that the patient gave him about his employment. There was no reason for him not to do so. There is nothing wrong with a person working for two employers. There is also nothing wrong with an employer insisting upon an original sick leave certificate.

42. Dr Ip never imagined that the patient would take his sick leave certificates and attempt to use them to make a fraudulent employees’ compensation claim. It never occurred to Dr Ip that this would happen because it is very obvious that, if an employee tried to do so, the Labour Department would immediately notice that there were two overlapping claims, as occurred in this instance.

43. Dr Ip saw the patient on each occasion that he issued a sick leave certificate. He treated the patient in good faith throughout the treatment period. The sick leave certificates contained no statements which are untrue, and no statements which Dr Ip had not taken appropriate steps to verify.” ’

6.  At the disciplinary inquiry before the Council, Dr Ip was legally represented. Dr Ip admitted that he issued to the patient without proper care the sick leave certificates which formed the subject matter of the Charges (a) and (b). Dr Ip did not give evidence. The Council proceeded to hear the evidence of Dr Tse who testified as to how the sick leave certificates should be properly issued by a medical doctor.

7.  The Legal Officer of the inquiry offered no evidence in relation to disciplinary Charge (c).

8.  The Council held that it agreed with the comments of Dr Tse where he found that Dr Ip never identified in his clinical records any significant pathology that could be the cause of the persistent pain suffered by the patient. It held that Dr Ip ought to have found out the underlying cause of the patient’s persistent pain instead of simply issuing the patient with continuous or overlapping sick leave certificates. Dr Ip should have taken proper care to assess on each consultation the patient’s medical condition and to review the treatment modality. He should have conducted further investigations ‘like x‑ray or MRI, and etc’ to look for the underlying cause (of the finger pain), so as to justify the prolonged sick leave.

9.  The Council was satisfied on the evidence that Dr Ip issued the sick leave certificates ‘without proper care and investigation’ (emphasis added).

10.  The Council came to the view that Dr Ip’s conduct fell below the standards expected of a registered medical practitioner in Hong Kong, and therefore found him guilty of Charges (a) and (b).

11.  The Council then went on to deal with the sentence of Dr Ip :

‘ 21. In accordance with our published policy, we shall give him credit in sentencing for admitting disciplinary charges (a) and (b) and not contesting the issue of professional misconduct before us today.

22. Through his solicitor, the Defendant accepted that in order to avoid possible confusion and fraudulent use of sick leave certificates, if 2 sick leave certificates have to be issued for the same period, a doctor should state clearly on one of them that it is a certified true copy. However, we wish to emphasize that this is not the basis upon which we find the Defendant guilty of misconduct in a professional respect.

23. Patients consult specialists on faith that the latter would exercise due diligence in applying their specialist skill and knowledge to their medical problems. We are particularly concerned that the Defendant, being a Specialist in Rehabilitation, had repeatedly issued sick leaves to the Patient with persistent pain without proper care or investigation. In our view, only those doctors befitting of the title of specialist should be allowed to have their names remained on the Specialist Register.

24. In view of the persistency of the Patient’s symptom, any registered medical practitioner in the position of the Defendant would have reviewed the Patient’s medical condition(s) and to find out the underlying cause(s) of his persistent pain.’

12.  The Council made the Removal Order.

III.  The appeal

13.  By way of an amended notice of appeal re-dated 1 April 2021, Dr Ip seeks to have the Removal Order set aside or substituted with an order that the Court deems fit. Ground 1 of the amended notice of appeal is relevant to the present application :

‘ The Council erred in law by sentencing the Appellant on the basis of culpability of which the Appellant was not found guilty (the “Fundamental Error”). In particular:-

(a) As a matter of well-established legal principle, the Appellant should only be sentenced on the culpable wrong/misconduct with which he was charged and of which he was found guilty.

(b) The culpable wrong/misconduct with which the Appellant was charged and of which he was found guilty is the improper issuing of sick leave certificates. In particular:-

(i) The two charges before the Council of which the Appellant were found guilty (i.e. charges (a) and (b)) comprise the breaching of professional standards (i.e. “without proper care and/or justification and/or investigation”) specifically for the underlying misconduct of improperly issuing sick leave certificates (at §1 of Decision).

(ii) As a matter of well-established legal principle, whilst the improper issuing of sick leave certificates is a serious matter, it is recognized that the potential resulting harm is in the nature of loss of money or productivity (suffered by the employer of the patient).

(iii) Charges (a) and (b) did not specify any underlying culpable wrong/misconduct of improper diagnosis and / or treatment of the patient.

(iv) In a pre-hearing open letter dated 19^th June 2020, the Secretary to the Council unequivocally stated that charges (a) and (b) were in substance identical to their previous formulation in the Notice of the Preliminary Investigation Committee dated 19^th August 2016, which specified that these charges were limited to the improper issuing of sick leave certificates contrary to section 26 of the Council’s Code of Professional Conduct.

(c) There were no charges pursued against the Appellant for improper diagnosis and/or treatment of the patient. In particular:-

(i) The improper issuing of sick leave certificates is an entirely different type of culpable wrong/misconduct, compared to improper diagnosis and/or treatment of the patient. The potential resulting harm of improper diagnosis and/treatment of the patient is in the nature of harm or risk to the health and wellbeing of the patient (which was not part of the allegations and charges against the Appellant on which the Appellant was found guilty).

(ii) Besides the charges on improper issuing of sick leave certificates, there were no other charges that were brought and ultimately pursued against the Appellant on which the Appellant was found guilty.

(iii) For the one charge before the Council which did concern breach of professional standards for the underlying conduct of improper diagnosis and/or treatment of the patient (i.e. charge (c)), no evidence was offered and the Council expressly found the Appellant not guilty (at §§1, 10 of the Decision).

(d) Insofar that there is any ambiguity in the charges brought against the Appellant, such ambiguity must be construed in the Appellant’s favour.

(e) In imposing the Sentence, it is apparent that the Council erroneously considered that the culpable wrong/misconduct of the Appellant included the comparatively more serious improper diagnosis and/or treatment of the patient, for which there was no finding of guilt against the Appellant (at inter alia [23] of Decision).’

14.  In the affirmation of Dr Ip’s solicitor, Ms Oonagh Toner filed on his behalf in support of the present application, it is said :

‘ 6. I refer to the Appellant’s Amended Notice of Appeal. Broadly, by the 1^st Ground of Appeal, the Appellant will argue that:-

(a) Charges (a) and (b) against the Appellant concern the culpable wrong/misconduct of improper issuing of sick leave certificates, for which the potential resulting harm is in the nature of loss of money or productivity.

(b) However, in imposing the Sentence, the Medical Council erroneously considered that the culpable wrong/misconduct of the Appellant involved improper diagnosis and/or treatment of the patient, for which the potential resulting harm is in the nature of harm or risk to the health and wellbeing of the patient.

(c) The Medical Council therefore erred in law, by sentencing the Appellant for a culpable wrong/misconduct with which the Appellant was never charged, and for which he was not convicted.’

15.  The new evidence that Dr Ip seeks to adduce are :

1)  A Notice of Meeting of the Preliminary Investigation Committee of the Medical Council dated 19 August 2016;

2)  A 2^nd Notice of Meeting of the Preliminary Investigation Committee of the Medical Council dated 6 April 2017; and

3)  Pre-hearing correspondence exchanged between Dr Ip and the Council between 16 June 2020 and 19 June 2020.

16.  The first set of documents contained, amongst other things, the referral by the Labour Department to the Council about the duplicate sick leave certificates. The second set of documents contained, among other things, amendment to the ‘charge’. The amended charge was what Dr Ip faced at the inquiry. The third set of documents contained exchange by the parties on the evidence to be adduced at the inquiry.

17.  The gist of Dr Ip’s first ground of appeal is summarised in his counsel, Mr Chain’s written submission :

‘ 14(c) On the proper interpretation of the Charges:-

(i) Objectively, on the face of the Charges as framed, the culpable wrongful conduct is the issuing of sick leave certificates, which is the conduct specifically identified.

(ii) The words “without proper care and/or justification and/or investigation” particularize the Charges, explaining and qualifying why the conduct of issuing sick leave certificates was improper fell below professional standards.

(iii) Applying the rule of duplicity, the same charge should not contain 2 types of culpable wrongful conduct. The words “without proper care and/or justification and/or investigation” cannot be read to introduce a charge on the culpable wrongful conduct of mistreatment or misdiagnosis of the patient.

(iv) No separate charges were brought against the Appellant for misdiagnosis or mistreatment of the patient.

(d) Notably, it has been held that whilst the issuance of an incorrect or false medical certificate is a serious matter, the only direct harm that will result is a loss of money or productivity.

(e) Upon being convicted of the Charges, it is submitted that the Council sentenced the Appellant on the basis that he had been convicted on the culpable wrongful conduct of mistreatment or misdiagnosis of the patient - i.e. on a much more serious type of wrong conduct (see inter alia §§23-24 of the Decision [12J]). This is readily apparent upon a comparison to the usual sentencing practice of the Council (see e.g. 3^rd Ground of Appeal in Notice). It was not open for the Council to do so, and that is the error in law which is the subject of the Appellant’s 1^st Ground of Appeal.’

18.  Mr Chain then deals with the relevance of the new evidence :

‘14(g) The new evidence is highly important and relevant to the Appellant’s argument on the 1^st Ground of Appeal:-

(i) The 1^st PIC Notice sets out a previous and differently worded version of the Charges where specific reference is made to section 26 of the Council’s Code of Professional Conduct, and explaining that it was originated from a complaint from the Labour Department in relation to sick leave certificates covering the same period being used for dishonest compensation claims.

(ii) Section 26 of the Council’s Code of Professional Conduct is titled “untrue or misleading certificates”. Subsection 26.1 identifies the purpose of the section in ensuring truthfulness of statements within doctor’s certificates which others may rely on.

(iii) The 2^nd PIC Notice amends the Charges to the latest version which were brought before the Council.

(iv) In the Pre-Hearing Correspondence, the Council states that the amended Charges are in substance the same as the previous wording in the 1^st PIC Notice.

(v) The new evidence as a whole explains the genesis of the Charges - how they were laid and what was represented by the Council to the Appellant as to their scope. Such subjective circumstances in which the Charges were laid against the Appellant can and should be taken into account as part of the objective interpretation of the Charges, and supports the Appellant’s argument on the 1^st Ground of Appeal.’

IV.  Our view

1)  Procedural consideration

19.  Mr Chain submits that the application should be adjourned for consideration at the same time as the substantive hearing of the appeal, on the basis that this would save time and costs and prevent any pre-judging of the merits of the substantive appeal. We disagree. As stated by Barma JA in Chong Hing Bank Ltd v Fairview City Ltd [2019] 4 HKLRD 636, [2019] HKCA 1033, at [10] :

‘ We do not think that this would be appropriate. It seems to us that it would be more convenient, and more conducive to a focused hearing at the appeal for any question of adducing new evidence to be dealt with in advance of the hearing, in order to enable both the court and the parties to focus on the issues arising on the appeal knowing what materials are to be considered for this purpose. To leave the question of whether or not the documents sought to be adduced as fresh evidence unresolved would mean that the parties, and the court, would not know what material might be in play on the appeal and would have to prepare for the appeal on different factual basis, resulting the expenditure of increased and possibly unnecessary time and effort. Further, the application is (as Mr Chong acknowledged) a fairly simple and straightforward one, and thus lends itself to reasonably prompt determination. It is also one which can appropriately be dealt with on paper on the basis of the written submissions lodged by the parties. We have therefore decided to deal with it now, on paper, rather than leaving it to be dealt with at the hearing of the appeal.’ (emphasis added)

20.  Neither do we consider it necessary to hear the oral submission of the parties. This is a straightforward application.

2)  Ladd v Marshall

21.  The general approach to an application for leave to adduce further evidence for the purposes of an appeal is well established, and requires the Court to be satisfied the three conditions identified in Ladd v Marshall [1954] 1 WLR 1489 are met. These are:

(i) that the evidence could not have been obtained with reasonable diligence for use at the hearing below;

(ii) that the evidence must be such that, if admitted, it would probably have an important influence on the result of the case, although it need not be decisive; and

(iii) the evidence must be such as is presumably to be believed, or must be apparently credible, though it need not be incontrovertible.

(a)  1^st Condition

22.  With regards to the first condition, Ms Toner stated that the Pre‑Hearing Documents were not produced at the inquiry as Dr Ip ‘could not reasonably anticipate the Medical Council would end up committing a fundamental error of misunderstanding and interpreting the charges (a) and (b) in sentencing the Appellant’. This does not deter from the fact that the evidence could have been obtained with reasonable diligence for use at the hearing below. Dr Ip’s application fails on the first condition.

(b)  2^nd Condition

23.  In any event, even if we were to accept Dr Ip’s contention that he could not have reasonably anticipated that the Council would commit a fundamental error in sentencing as alleged, we would refuse the application on the basis that the second condition of Ladd v Marshall has not been satisfied.

24.  It is clear from the transcript of the inquiry that Dr Ip who was legally represented at the inquiry was fully aware of the charge against him. At the beginning of the inquiry, his lawyer said :

‘ The position that I understand, and if there is any misunderstanding I can obviously go and take instructions, is that the charges (a) and (b), as the Legal Officer quite rightly says, are that Dr Ip issued sick leave certificates either without proper care or justification or investigation. If the Legal Officer establishes one of those three, the facts are established. She doesn’t have to prove all three.’

......

So it is sufficient for the Legal Officer to establish one of those three. Now, that in no way stops the Medical Council doing whatever they think is appropriate, but as far as the Legal Officer is concerned, she only has to establish one of those three to make out the facts of the charge. And Dr Ip’s instructions to us is that he does not want to contest charges (a) and (b), he admits he issued these certificates without proper care.

...

And that is, it’s not a partial admission, it is a complete admission to of one of the alternatives, charges (a) and (b).’

25.  So while Dr Ip had admitted that he issued the sick leave certificates without proper care, he was fully aware that lack of proper care was just one of the three alternatives covered by the charge. The other alternatives are the sick leave certificates were issued ‘without justification’ and ‘without investigation’. The Council convicted him on the basis that the sick leave certificates were issued without proper care and investigation. In view of what Dr Ip’s lawyer had informed the Council earlier, this could not be said to be something that was not anticipated. This position was further confirmed after Dr Ip was convicted and when his lawyer mitigated on his behalf. The Legal Adviser of the Council reminded Dr Ip’s lawyer that :

‘ The Inquiry Panel is not concerned with that there being two sets of sick leave certificate. Their real concern is that he issued the certificate without taking proper care and proper investigation. Perhaps you can address Inquiry Panel on these points, how Dr Ip is going to assure the Inquiry Panel on how he is going to make good these deficiencies.’

26.  In respect of the ‘without care’ aspect, his lawyer said :

‘ Now, I entirely accept what the Legal Adviser has just said, but Dr Ip accepts that the certificates he issued were issued improperly and without due care. That is part of the charge and he fully accepts that.

And so we need to ask ourselves how is he going to make sure he doesn’t do that again in the future? And the answer is he will be a great deal more careful from now on and, where appropriate, he will speak to an employer direct.’

27.  Then on the issue of without investigation, his lawyer said :

‘ The second point is the point the Legal Adviser has very kindly raised, reminded me of, is Dr Ip accepts two things. That firstly, in this case he did not carry out appropriate investigation, sufficiently detailed investigations into the patient’s condition. He accepts of course that pain is not a diagnosis, as Chairman commented. It’s a symptom.

So he fully accepts that when he is dealing with these cases, he must go through the usual procedure of carrying out an examination, arranging appropriate investigations, of course, although we should remember in this case the patient refused an x‑ray, which Dr Ip tried to do. But he must carry out sufficient investigations to enable him to reach a diagnosis or differential diagnoses, and having done that, and only having done that, should he then treat a patient......’

28.  From the above, one can see that the charge that Dr Ip was faced with was not simply improperly issuing two sets of sick leave certificates for which the potential resultant harm is in the nature of loss of money or productivity. Nor was it a matter of mistreatment or misdiagnosis. What the Council sentenced Dr Ip for was precisely what it had convicted Dr Ip of, namely, that he issued the sick leave certificates without proper care and investigation. Further, no issue about the duplicity of the charge was taken by Dr Ip’s lawyer at the inquiry. On the contrary, he actually recognized that the charge covered the alternative issue of ‘without investigation’. The intended new evidence will not have any important influence on the result of the case.

29.  Consequently, there is no need to consider the third condition.

V.  Conclusion

30.  The application is dismissed.

31.  We will make an order nisi that the Council is to have the costs of the application which we will summarily assess at $40,000.