Chow Wai Fu v. Medical Council of Hong Kong

CACV000205/1991

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Coram: Fuad, V.-P., Macdougall & Nazareth, JJ.A.

Date of hearing: 25th February 1992

Date judgment handed down: 4th March 1992

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J U D G M E N T

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Fuad, V.-P.:

1. On 27th November 1991, the Medical Council of Hong Kong ("the Council") exercising jurisdiction under s.21 of the Medical Registration Ordinance, Cap. 161 ("the Ordinance") judged Dr. Chow Wai Fu guilty of professional misconduct on two charges and directed that his name be removed from the register maintained under s.6 of the Ordinance for a period of 2 years. Dr. Chow now appeals to this court in the exercise of the unfettered right conferred upon him by s.26 of the Ordinance.

2. Dr. Chow, who is aged 49, graduated from a medical college in China in 1968. He came to Hong Kong in 1978. Having satisfied the relevant requirements of the Ordinance, he was granted a licence by the Council in April 1980 under s.13A and became entitled to be known as a Licentiate of the Medical Council of Hong Kong. He thus became a registered medical practitioner as defined in the Ordinance and worked in the Government medical service for about 3 years before he went into private practice.

3. The charges Dr. Chow had to face before the Council were in these terms:

" That you, being a registered medical practitioner:-

(i)    did prescribe and supply drugs of addiction or dependence, namely Rohypnol being a benzodiazepine derivative known as flunitrazepam with the street name of 'Sap Chi Ka' to Mr. HO Siu-wing PC22038 on divers dates between 20 April 1990 and 4 May 1990 at your surgery at Flat O, 4/F., Hong Kong Mansion, Yee Wo St., Hong Kong otherwise than in the course of bona fide treatment, contrary to section 4 of the Warning Notice of the Medical Council of Hong Kong; and

(ii)    did prescribe and supply drugs of addiction or dependence, namely Rohypnol being a benzodiazepine derivative known as flunitrazepam with the street name of 'Sap Chi Ka' to Mr. CHAN Man-cheong PC9673 on divers dates between 11 April 1990 and 4 May 1990 at your surgery at Flat O, 4/F., Hong Kong Mansion, Yee Wo St., Hong Kong otherwise than in the course of bona fide treatment, 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 professional misconduct."

4. At the hearing before the Council the case against Dr. Chow was presented by Ms. Vicky Hartstein, Senior Crown Counsel, and he was represented by Mr. Jeevan Hingorani. Counsel agreed that no oral evidence would be given and that the case would proceed on unchallenged witnesses' statements. This course is permitted by reg. 28(1) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations ("the Regulations").

5. The Council had before it a statement from Professor Felice Lieh Mak, Professor and Head of the Department of Psychiatry, University of Hong Kong, containing, inter alia, relevant information about the drug Rohypnol, the improper prescription and supply of which was the subject of both the charges. This part of her statement, which was not disputed, reads:

"Nature of Rohypnol:

Rohypnol is the proprietary name of the benzodiazepine derivative known as flunitrazepam. [The street name]. It is manufactured by Roche Pharmaceuticals and come in 2 mg tablet form.

It is fairly long acting and has a half-life of 12 hours. The recommended adult dosage is 0.5 mg to 2 mg at bedtime.

Indications:

Rohypnol is mainly used for the treatment of insomnia. Less frequently it is also used as an intravenous anesthetic agent.

Pharmacological action:

It acts mainly as a sedative.

Side effects:

Side effects are dependent on a number of factors: dosage, individual sensitivity, duration of being on medication, presence of other drugs, body size and weight.

The common side effects are: drowsiness, memory impairment, impaired coordination, slowing of reaction time, slurred speech. Less common side effects include: dizziness, low blood pressure, blurred vision.

In common with other benzodiazepines it also has a disinhibiting effect on behaviour normally suppressed by negative or aversive consequences.

Dependency potential: long term use of Rohypnol may result in the development of dependence of the alcohol/barbiturate type. Withdrawal symptoms may include marked anxiety, shakiness, abdominal cramps and in severe cases confusion and seizures.

Abuse potential: Nonmedical use of Rohypnol to 'get high' is known."

6. Also before the Council were transcripts of tape-recorded conversations which took place at Dr. Chow's clinic in Causeway Bay when the two undercover police constables named in the charges, pretending to be ordinary patients, bought Rohypnol tablets on 10 separate occasions between 11th April and 4th May 1990. I do not find it necessary to recount precisely what was said on these occasions, for it is accepted that Professor Mak's comments regarding what the transcripts of the tapes revealed are accurate and wholly fair to Dr. Chow. I mention that Ms. Hartstein made it clear that it was entirely a matter for the Council how they viewed each of the visits. Mr. Hingorani declined an invitation by the Chairman of the Council for an opportunity to question either of the police constables but emphasised a point which had already been made by Ms. Hartstein - that obviously the transcript could not show anything other than what was spoken. He said: "It is my intention to present the additional matters which did not appear in the transcript as a part of my mitigation."

7. These are Professor Mak's comments on 8 of the 10 visits made by the constables to Dr. Chow's clinic:

P.C. Chan's visits

"11th April 1990	On this visit Dr. Chow did not
	take a proper medical history
	nor did he try to establish
	whether [he] was indeed
	addicted to Rohypnol. Despite
	this he made a diagnosis of
	drug addiction. In addition
	Rohypnol was prescribed and
	dispensed [10 tablets] for a
	reason in which there is no
	medical indication e.g. fro fun
	or to achieve a high
23rd April	Despite admonishing [him] not
	to take too many Rohypnols and
	to quit slowly he sold him
	twice the number of tablets
	[20]. In fact he gave what
	[he] asked for.
25th April	Dr. Chow easily accepted [his]
	explanation of losing the drug
	and gave him 10 tablets.
2nd May	The tablets [20] were being
	sold on demand for no
	therapeutic purpose."

P.C. Ho's visits

"20th April 1990	In this instance despite
	Dr. Chow's own warning that
	Rohypnol was addictive and
	[his] response that.he was only
	taking it for a 'high' the drug
	was prescribed and dispensed
	[20 tablets]. There is clearly
	no indication for giving [him]
	the medication.
24th April	Despite noting that [he]
	finished 20 tablets in 4 days
	and asking him not to take so
	many, Dr. Chow sold [him]
	another 20 tablets.
27th April	Just 3 days later 20 tablets
	were sold on demand without any
	attempt to help [him] deal with
	his drug problem.
2nd May	This sounded more like a
	business transaction than a
	doctor treating a patient [20
	tablets]."

8. Professor Mak did not comment about visits made by both police officers separately on 4th May when the transcripts show no more than that they each bought 20 tablets of Rohypnol at Dr. Chow's clinic.

9. Professor Mak's statement (which was clearly treated as an expert's report) ends with the following unchallenged conclusions based on the transcripts of the tape-recorded conversations, as well as Dr. Chow's own case notes which she had examined:

"1. Dr. Chow has been prescribing and dispensing Rohypnol to P.C. CHAN and P.C. HO for nonmedical use. Both P.C. CHAN and P.C. HO did not complain of insomnia. In fact they very clearly indicated to Dr. Chow that they were using the drug to achieve a 'high'.

2. There was no attempt to establish that either P.C. CHAN or P.C. HO were in fact addicted to Rohypnol. Despite the absence of any evidence of drug addiction a diagnosis of such was made. From the contents of the transcript of the tape there was clear evidence that both P.C. CHAN and P.C. HO were abusing the drug. Drug abuse being defined as: a maladaptive pattern of psychoactive substance use indicated by continued use despite knowledge that the drug causes social, occupational, psychological or physical problems. In this situation continued prescription of Rohypnol is not indicated.

3. From the contents of the transcript it is evident that Dr. Chow did not behave in a manner which a reasonable and prudent doctor would under similar circumstances."

10. When members of the Council had read the material put before them, the Chairman indicated that since Mr. Hingorani did not wish to put any questions to the undercover police constables, it had been decided not to call them to give oral evidence. The Chairman then enquired whether the defence wished to make a submission that sufficient evidence had not been adduced upon which the Council could find that the facts alleged in the charges had been proved, or that the facts alleged were not such as to constitute the offence charged. Mr. Hingorani responded that he had no such submission to make but would make a plea in mitigation on behalf of Dr. Chow. The Council had previously been informed that no defence witnesses would be called.

11. The Chairman then asked the parties to leave the room while the Council deliberated upon their decision. When the parties returned, the Chairman announced that they had decided that the facts alleged in the charges had been proved to their satisfaction and that Dr. Chow was guilty as charged.

12. Although Dr. Chow did not give evidence himself, the Council allowed Mr. Hingorani during his speech in mitigation to state on his behalf, that during the pause that is indicated on the transcript relating to one of P.C. Chan's visits, Dr. Chow had told the P.C. that the 10 tablets asked for was the had maximum number which could be prescribed and that at the same time he had examined P.C. Chan by checking his heart, lung functions and throat. On another occasion, Mr. Hingorani stated, P.C. Chan had told Dr. Chow that he suffered from fits of depression if he did not take the tablets. Further, that during one of P.C. Ho's visits (Dr. Chow could not remember which one) the P.C. had suggested that he was losing all interest in life if he did not take this or other drugs.

13. Mr. Hingorani informed the Council that Dr. Chow was a married man with 3 children and related his training and background. He drew attention to the fact that Rohypnol (while always lawfully available only on prescription) was reclassified as a dangerous drug only in October 1990. He invited the Council to accept that these were isolated occasions. He stated that no criminal prosecution connected with the supply of these drugs by Dr. Chow were pending.

14. Counsel emphasised that the Council was given a wide discretion by s.21 of the Ordinance as to "the sentence" it could impose. He submitted that this was a case which justified lenient treatment although he appreciated that merely a reprimand was "most unlikely". Counsel also suggested that the facts revealed were quite different from those where real patients had been involved a more insistent stance might be taken by police officers pretending to be patients.

15. Counsel mentioned a similar case where removal from the register for 6 months had been ordered by the Council and suggested that in this case, a suspension order might be considered appropriate, which might, he acknowledged, have to be for a "reasonably long time".

16. Counsel produced a character reference from a senior colleague who said that he had known Dr. Chow since 1980 and had worked with him in the same team in the Radiotherapy Department of Queen Elizabeth Hospital. He knew Dr. Chow as an honest and upright doctor, with a kind heart. He was hardworking and conscientious and of a caring disposition. He was a good father of a happy family.

17. No complaint is made in connection with the findings of guilt. This appeal concerns only the order of removal from the register. It is convenient here to note that under s.21 of the Ordinance, if the Council is satisfied that the requirements of any one of paragraphs (a) to (d) of subsection (1) are satisfied (paragraph (b) refers to "misconduct in any professional respect") apart from orders in relation to costs, the council may "in its discretion":

"(i) order the name of the registered medical practitioner to be erased from the register; or

(ii) order the name of the registered medical practitioner to be removed from the register for such period as it may think fit; or

(iii)   order the registered medical practitioner to be reprimanded; or

(iv) make any such order as aforesaid but suspend the application thereof, subject to such conditions as the Council may think fit, for a period, or periods in the aggregate, not exceeding 2 years; or

(v) order that a warning letter be served on the registered medical practitioner."

18. The Ordinance, by s.26(1), gives power to this Court to "affirm, reverse or vary the order appealed against." The nature of the jurisdiction exercised by an appellate tribunal in appeals of this kind has been discussed in many cases. The leading authorities were reviewed by the Privy Council on an appeal from the Disciplinary Committee of the General Medical Council of England and Wales in the judgment delivered by Lord Hailsham of St. Marylebone, L.C. in Libman v. General Medical Council [1972] AC 217. The cases show that notwithstanding the unlimited terms of provisions on the lines of our s.26(1), the actual exercise of such jurisdiction is severely limited by the circumstances in which it can be invoked.

19. Since here we are only concerned with the sentence imposed by the Council, I approach the exercise of the jurisdiction entrusted to us with the observations of Lord Mackay of Clashfern, L.C. in Peatfield v. General Medical Council [1986] 1 WLR 243 in the forefront of my mind. He said, at p.251:

" The final point made by the doctor was that the sentence imposed was unduly severe and the doctor invited their Lordships to substitute either a suspension or a direction that the doctor's registration should be conditional on his observance of conditions to be prescribed.

The question of the appropriate penalty to be imposed in respect of serious professional misconduct is a matter peculiarly within the discretion of the committee and interference would be justified only if it was plain that the sentence imposed was inappropriate."

20. The original Notice of Appeal raised the simple ground that the order for removal from the register for 2 years was "manifestly excessive in all the circumstances". Supplementary grounds of appeal were later filed in these terms:

"2. That Counsel appearing for the Medical Council of Hong Kong, without evidential foundation and without prior notice to the Appellant, made an improper assertion to the Medical Council of Hong Kong about the purchase by the Appellant of allegedly excessive quantities of Rohypnol in an attempt to shed doubt on the Appellant's submission that the events leading to the charges represented specific and isolated occasions of contravention by the Appellant of Section 4 of the Warning Notice of the Medical Council of Hong Kong;

3. That, despite the fact that such an assertion was not only prejudicial but also immaterial, the Medical Council of Hong Kong placed significance upon it to the extent of questioning the Appellant about such purchase; and

4. That, in failing to signify that such an assertion had not been taken into consideration when imposing the sentence, and in imposing a sentence that was manifestly excessive, the Medical Council of Hong Kong clearly drew an inference from the assertion that was prejudicial to the Appellant."

21. In relation to grounds 2-4 it is necessary to explain what happened at the inquiry after Mr. Hingorani had finished his speech in mitigation. The transcript shows that Ms. Hartstein said this:

"I wonder Madam Chairman if I might address the Council at this point. I seek the Council's leave if I need the leave to do so. And that is by one point which was raised by my learned friend which is that this was an isolated incident. All I wish to say is that the police took the action which they did because it was reported to them by the Chief Pharmacist of Hong Kong in December 1989 that amongst other doctors, this doctor was on a list of registered doctors who had bought excessive quantities of Part I Poisons. And it was because of that information that the police conducted the operation which they did."

22. The Chairman asked Mr. Hingorani if he wished to reply to that submission. If I understand what is recorded correctly, counsel stressed that the Council was only concerned with the facts revealed in the transcripts of the tape-recordings and the fact that reports had been made to the police should not affect the way Dr. Chow was be dealt with on the charges before the Council.

23. The Chairman then referred to something Mr. Hingorani had said before the Council had decided upon the guilt of Dr. Chow - that he intended "to present additional matters which did not appear in the transcripts as part of my mitigation". I have already mentioned the facts stated by counsel on behalf of Dr. Chow which were not reflected in the transcripts. I note that Mr. Hingorani had said (p.137 of the appeal bundle):

"Perhaps it might be best if I mitigate and if the Council wishes to pose any questions in regard to the [inaudible] so that it can be put to Dr. Chow himself."

I return to what the Chairman said on this occasion. She asked if any member of the Council wished "to ask the defendant on the statements produced by Defence Counsel which are not recorded on the tape." When one member of the Council said that he had some questions to ask which were relevant but "not necessarily within the scope of the transcripts" the Chairman observed "the defendant has a right not to answer, is that so? " The Legal Adviser said that it depended on counsel, whereupon Mr. Hingorani said:

"If I understand the position [inaudible] ... I can put the question to my solicitor who can ask the defendant and I can give you the response [inaudible] ... to any question."

Ms. Hartstein replied that she had no objection when the Chairman asked whether the course proposed was "alright".

The transcript of the inquiry then continues:

"[Council	I'd like to ask Doctor Chow what type
member]:	of patients he usually sees and why
	he is required to purchase such large
	amounts of Part I Poisons prior to
	this incident.

24. Mr. Hingorani then had the last word. He emphasised that this was the first occasion that the doctor had appeared before the tribunal facing such a matter, and submitted that this was what should really concern the Council. Courts were not allowed to speculate or assume that a person had done something in the past and been lucky not to get caught. They had to go on the basis that the defendant was there for the first time. If it were otherwise, he said, speculation could be rife and it could lead to unjust results merely because the tribunal did not know what had gone on and had preferred to come to its own conclusions about past history.

25. After interested parties had left the room and later returned, the Council announced the penalty imposed upon Dr. Chow.

26. Mr. Henry Litton, who as we have seen did not represent Dr. Chow before the Council, emphasised that jurisdiction to make the order appealed against depended upon there having been "due enquiry" ... "conducted substantially in accordance with procedure prescribed by regulations made under section 33" as stipulated by s.21(1) and (2) of the Ordinance.

27. He drew attention to reg.26(1) of the Regulations which provides that where the Council reaches the sentencing stage, the defendant or his legal representative may address the Council in mitigation (and may adduce evidence as to the circumstances leading to the offence and concerning the defendant's character and antecedents). The Council then considers and determines the sentence (reg.26(2)).

28. Mr. Litton pointed out that only where there are relevant records of any previous orders made by the Council under s.21 of the Ordinance, does reg.26(lA) allow the person presenting the case against the doctor to address the Council after a finding of guilt and, he submitted, the prescribed procedure certainly does not permit that person to make factual assertions prejudicial to the defendant after the speech in mitigation and before the Council begins deliberation on sentence.

29. Mr. Litton contended that after Ms. Hartstein had intervened about the report made to the police, the Chairman should have ruled her "out of order" and not acted as she had done. Mr. Litton added that if counsel then representing the doctor had accurately stated the position about the number of patients suffering from anxiety and insomnia being seen each day, and if Rohypnol was being prescribed for all those patients, then the quantity of drugs prescribed by Dr. Chow would have been "enormous".

30. The error made by counsel, contributed to by Dr. Chow's poor command of English had, Mr. Litton suggested, been brought about in the first place by the improper intervention by counsel presenting the case; the doctor had been unprepared to meet fresh allegations that had been made which had formed no part of the case presented against him in accordance with the procedure laid down by reg.22 of the Regulations.

31. As to the error referred to by Mr. Litton, all I find it necessary to say is that the experienced members of the Council conducting the inquiry must have realised that counsel had made a slip of tongue (in saying that during the relevant period Dr. Chow saw 50-60 patients a day who suffered from anxiety and insomnia who were given Rohypnol) when he later stated that the doctor prescribed about 2 bottles of Rohypnol per month (2,000 tablets) to such patients.

32. From the outcome of the case, Mr. Litton argued, it could reasonably be inferred that the Council had been heavily influenced by the assertion that Dr. Chow had bought excessive quantities of Part I Poisons since the sentence imposed upon him was wholly out of line with previous cases. The huge disparity, in his submission, could not be explained by mitigating factors relevant to the individual doctors.

33. Mr. Litton referred us to two Gazette Notices of Orders made in the past by the Council:

No further details about these cases were made available to us. Regarding the case mentioned by Mr. Hingorani in his mitigation speech, we were told from the Bar that the doctor concerned had pleaded not guilty to 3 (possibly 4) charges of prescribing Rohypnol to 3 (or 4) undercover police officers pretending to be patients otherwise than in the course of bona fide treatment. The police officers involved had bought the tablets on a number of occasions, as in the present case. The doctor was found guilty and an order was made that his name be removed from the register for a period of 6 months.

34. Of the authorities cited to us, in the light of the nature of this appeal, I think that it would be helpful to cite a passage from Fox v. General Medical Council [1960] 1 WLR 1017, where Lord Radcliffe gave the judgment of the Board. At pp.1021-1022 he said:

"The validity of any determination by the committee is, certainly, dependent upon the performance of its statutory duty to hold a 'due inquiry' into the matter, and the Board will need to be satisfied as to this if it is challenged on an appeal. But to say that there must be due inquiry does not greatly elucidate the question unless there is some exhaustive definition of the conditions which such an inquiry postulates. It has been said in an earlier case (see General Medical Council v. Spackman [1943] A.C. 627) that there can have been no due inquiry if the rules of natural justice have not been observed, and this is true. At the same time it must be remembered that before there was a statutory right of appeal to the Board under the Medical Act the only way of attacking a decision of the council was by way of certiorari proceedings or, at any rate, one of the other prerogative writs. Such proceedings are not truly by way of appeal. The court in granting or refusing the writ does not investigate the merits of the decision: its only concern is to satisfy itself that certain essential rules of procedure, which are treated by it as constituting the requirements of natural justice, have been duly observed.

Their Lordships think, therefore, that it would be an undue limitation of their duty and powers in dealing with the statutory appeal to require no more for the upholding of a determination than observance of what are known as the rules of natural justice."

Lord Radcliffe then referred to certain procedural rules regarding the conduct of disciplinary proceedings and went on to say:

"The Board is bound to consider complaints made on any appeal to it against the background of these special regulatory provisions. It may be that in some cases an appellant will be able to show in positive terms that there has been a departure from what the rules required. In any such case the departure will be a matter for comment and, in the absence of any actual indication of the significance or bearing that it had upon the ultimate decision, their Lordships cannot well escape the responsibility of assessing for themselves what that significance or bearing should be taken to be. It is sufficient at this stage to guard themselves from the assumption that merely because something inconsistent with the rules can be shown to have taken place, there can have been no 'due inquiry,' and the decision appealed from must necessarily be reversed."

35. In my judgment these considerations apply as well to the sentencing stage as to that part of the hearing which leads up to a conviction. I may mention that it was Lord Radcliffe's approach which governed the decision of this Court in Bishop v. Dental Council of Hong Kong, Civil Appeal 52 of 1983, 12th July 1983 (unreported).

36. Ms. Hartstein, clearly after anxious consideration, judged it right to appear before us in support of the Council's order despite the fact that the nature of the appeal involved an examination of her conduct during the inquiry. She explained why she had intervened but frankly, and fairly, as I would expect of her, acknowledged that her intervention had been "out of the ordinary" and "irregular". She had been, she assured us, concerned only to correct what she considered had been misstatements during defence counsel's mitigation speech. She told us from the Bar that she had shown Mr. Hingorani a memorandum from the Commissioner of Police to the Secretary of the Medical Council in support of her assertion to the Council that Dr. Chow had been on a list of doctors who had bought excessive quantities of Part I Poisons (and this information had led the police to send the undercover officers to buy the tablets at Dr. Chow's clinic).

37. I do not think it necessary to discuss Ms. Hartstein's explanation for her action although I have no doubt that she acted in the interests of justice as she viewed the position at the time. In my view what is decisive in this appeal is what her intervention led to.

38. It is trite law that an "offender" must be "sentenced" only for the offences of which he has been found guilty (or has admitted). The Council surely acted without jurisdiction if Dr. Chow was sentenced upon the basis that he had been guilty of professional misconduct in other ways or on other occasions. Even if it may appear fairly clear that offences proved are part of a series of such offences committed by a doctor, the sentence imposed must relate, and be seen to relate, only to the charges so proved.

39. It is plain that very great care was taken by the Chairman to be fair at all stages of the inquiry, including the sentencing stage. Mr. Hingorani raised no objection to Ms. Hartstein's observations, and he was given the last word. Nevertheless, since a member of the Council asked a question in the form he did, the Legal Adviser in attendance should, we think, have advised the Council to consider the appropriate order to make ignoring allegations not specifically covered by the charges proved. The question:

"I'd like to ask Doctor Chow what type of patients he usually sees and why he is required to purchase such large amounts of Part I Poisons prior to this incident."

was obviously prompted by the observation by counsel presenting the case against the doctor:

"All I wish to say is that the police took the action which they did because it was reported to them by the Chief Pharmacist of Hong Kong in December 1989 that amongst other doctors, this doctor was on a list of registered doctors who had bought excessive quantities of Part I Poisons."

Whatever was in Ms. Hartstein's mind, it must be recalled that she was, in her own words as the record shows, refuting "a point raised" by Mr. Hingorani "that this was an isolated incident".

40. Since the Legal Adviser did not sound a note of caution; since the Council did not indicate that in imposing the order for removal from the register for 2 years they had not been influenced by the allegation that Dr. Chow had bought excessive quantities of Part I Poisons in the past, bearing the implication that the charges proved were not "isolated incidents"; and since, on the information we have been given, the operative period of the removal order was 4 times that ordered in an apparently similar case (at an inquiry presided over, we were informed, by the same Chairman) I feel that we are bound to interfere. In my judgment, in circumstances such as these, if justice is to be seen to be done, an appellate tribunal must be astute to give the benefit of any doubt about the basis upon which he has been sentenced to the doctor.

41. However, this is an extremely serious case. The high standing of the medical profession demands that practitioners who betray the trust placed in them in the way established in this case, should be sternly dealt with. The confidence placed by the public in doctors is rightly jealously guarded by the profession as a whole. I wish to make it clear that, applying the principles re-stated by Lord MacKay in Peatfield's case cited above, I would not have agreed to interfere with the sentence had the grounds raised in the supplementary grounds of appeal not succeeded.

42. For the reasons I have given, I would allow the appeal. We have no power to remit the matter to the Council for reconsideration. I would therefore vary the order appealed against, by substituting for it an order that Dr. Chow's name be removed from the register for a period of 18 months.

Macdougall, J.A.:

43. I agree that this appeal should be allowed and that the Council's order be varied by substituting for it an order that the appellant's name be removed from the register for a period of 18 months. However, I have something to add.

44. In his address in mitigation counsel for the appellant said:

"I would submit of course that this is a suitable case for a lenient treatment on the basis there is no evidence other abuses have taken place and of course this case has resulted from the interposition (sic) of people posing as patients. This kind of situation I would submit as quite different because people who pose in such a position tend to adopt a very insistent stance in what they are seeking and perhaps that insistence is not something we would come across in the natural course of events with a layman who is merely looking for a drug for self consumption. So it is as it

were a 'set up' and one often finds of course in many branches of life, particularly in Hong Kong where the concerns are more serious than in other jurisdictions."

45. The distinct impression that this created was that the appellant would not have committed offences of the nature of those with which he was charged had it not been for the actions of the police acting as agents provocateurs.

46. Plainly, a person who is lured into committing an offence that he would not otherwise have contemplated committing is deserving of much less severe punishment than one who was not so induced.

47. In making a submission in mitigation, counsel does not have carte blanche. He must take care that he does not give the tribunal he is addressing a false impression of the circumstances under which his lay client's offences were committed. It would have been entirely proper to emphasise that it was the first occasion on which the appellant had appeared before the Council and that he must be dealt with as a first offender, but it was quite misleading to suggest that the offences had been committed as a result of the police acting as agents provocateurs.

48. In the circumstances Miss Hartstein was entitled to correct that impression. It was open to her to inform the Council that although she was making it plain that she was not asserting that the appellant had committed other offences, the reason the police had taken the action they did was that it had been reported to them by the Chief Pharmacist that the appellant had purchased an excessive quantity of the drug Rohypnol. Such a statement would effectively have negatived any false impression that the appellant had been "set up" by the police to commit offences which he would not otherwise have committed.

49. Unfortunately, however, she overstepped the boundary of proper corrective response by asserting, on the basis of the Chief Pharmacist's information, that the present offences were not isolated incidents, and implied that the appellant had purchased excessive quantities of other Part I Poisons. It by no means follows from the fact that a doctor has purchased an excessive quantity of a drug that on different occasions from those in respect of which he is subsequently found guilty of having prescribed and supplied a drug otherwise than in the course of bona fide treatment, he has committed other offences in relation to that or any other drug.

50. Since these twin assertions were not nullified by curative advice from the Council's legal adviser, it cannot safely be assumed that the members of the Council were unaffected by them in arriving at their decision on penalty. Had that advice been given or had the Council, when announcing its decision, stated that it had confined itself to the offences on which the appellant had been found guilty, I would not have felt justified in interfering with the penalty imposed. As matters stand, however, notwithstanding that the tapes reveal deplorable professional misconduct by the appellant, it is only right that some reduction should be made in the term for which the Council ordered that his name be removed from the register.

51. Having given these reasons for agreeing that this appeal should be allowed I should emphasise that I am satisfied that by saying what they did neither counsel intended to mislead the Council.

Nazareth, J.A.:

52. For the reasons given by my Lords, I agree that the appeal should be allowed and with the order proposed.

Fuad, V.-P.:

53. In handing down these judgments allowing this appeal to the extent indicated, we make an order nisi, pursuant to s.26(4) of the Ordinance, that Dr. Chow shall have the costs of the appeal.

Representation:

Mr. Henry Litton, Q.C. and Mr. Andrew Mak (Chung & Kwan) for the Appellant

Ms. Vicky Hartstein (Crown Solicitor) for the Respondent