Dr. Kwan Chee Keung v. The Medical Council of Hong Kong

1997, No. 265
(Civil)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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Coram : Hon. Godfrey, Leong and Rogers, JJ.A. in court

Date of Hearing : 4 September 1998

Date of Judgment : 4 September 1998

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is an appeal from an order of the Medical Council of Hong Kong ("the Council") made on 27 November 1997. The appellant, a doctor, is Dr. Kwan Chee Keung ("the appellant").

The order

2. The order made by the Council was an order that the appellant be removed from the register for a period of 1 year, and against this the appellant now appeals. The order was made pursuant to the disciplinary powers conferred on the Council by section 21 of the Medical Registration Ordinance, Cap. 161. Section 21, so far as is material, reads as follows :-

"21. Disciplinary powers of Council

(1) If, after due inquiry into any case referred to it by the Preliminary Investigation Committee, the Health Committee or the Education and Accreditation Committee in accordance with regulations made under section 33, the Council is satisfied that any registered medical practitioner -

(a) has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment;

(b) has been guilty of misconduct in any professional respect;

.....

the Council may, in its discretion -

(i) order the name of the registered medical practitioner to be removed from the General Register; or

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

..... "

I need read no further from section 21 for present purposes.

The present case

3. In the present case, the proceedings before the Medical Council were brought under section 21(1)(a), on the ground that the doctor had been convicted in Hong Kong of offences punishable with imprisonment, theft and attempting to obtain property by deception. Very briefly, the appellant had stolen a wallet from a fellow doctor and had used that doctor's credit card to obtain, we were told, some $40,000 worth of crystal glass. The appellant was sentenced on 27 March 1996 to a total period of six months' imprisonment. On an appeal against sentence, the judge, Gall, J., suspended the sentence.

The appeal against the order of the Council

4. The appellant appeals on two grounds.

The first ground of appeal

5. First, the appellant says, there was a procedural irregularity in the proceedings before the Council. At the conclusion of the hearing, the Chairman announced that the Council would adjourn. On resuming the hearing, the Chairman announced that the Council found that the facts alleged against the appellant had been proved to their satisfaction and that he was guilty of the offence charged. She was about to ask the appellant's representative to address the Council. But the legal adviser of the Council intervened and said this to the Council :-

"It's just to confirm for the record, I have already spoken to the defence counsel on this matter that whilst the Council have retired to consider their decision on that aspect that one of the Members of the Council advised me that he had certain information that could be relevant to the hearing. I spoke to him apart from the other Council Members and he told me what the situation was. He assured me that in fact it would not have any relevance to the way he was approaching the issue today but in view of the fact that he had this knowledge I felt it was appropriate that Mr Fu [the appellant's representative] should be advised of it so that he could again take instructions from his client as to whether in fact he was satisfied with the Council continuing."

6. Mr. Fu then stated :-

"We are satisfied that the Council be continued."

7. The legal adviser thanked him and the Chairman then said :-

"Thank you. Is there any application for the Council to postpone sentence?"

8. Mr. Fu replied :-

"I have no such application to make."

9. On this foundation, Mr. Macrae for the appellant, in an attractive argument, submitted to us that it was in effect unsafe in these circumstances to allow the finding of guilt, or at any rate the sentence imposed on the appellant, to stand. He pointed out we could not know now whether or not what had transpired was of such significance that it might have effected the minds of the Council's members, and that therefore there might have been here a miscarriage of justice. Mr. Macrae cited to us the case of Chow Wai Fu v. Medical Council of Hong Kong, Civil Appeal 205 of 1991, unreported, in which the legal adviser to the Council had said something during the course of the hearing which had not in fact been the subject of evidence. In that case the court thought it was bound to interfere. It did so by substituting for an order for the removal of the doctor's name from the register for a period of two years an order that his name be removed from the register for a period of 18 months.

10. That case bears only some superficial similarity with the present case. It is true that there is nothing at all here upon which we can go in considering the substance of the point which was made by the member of the Council to the legal adviser. But it is also true that the appellant's representative was content to accept the position.

11. In these circumstances, I do not, for my part, think there was any miscarriage of justice here. I would therefore reject Mr. Macrae's argument for the appellant upon this point.

The second ground of appeal

12. The second point taken by Mr. Macrae is that the sentence of removal of 12 months, having as it did immediate effect, is a sentence seriously out of tune with previous decisions of the Council. Further, this, as he pointed out, is not a "professional misconduct" case. It was a case which followed inevitably upon the appellant's conviction of an offence punishable with imprisonment. In this connection, Mr. Macrae cited to us an English case, In re a Solicitor (1956) 1 WLR 1312. That was a case in which the solicitor had committed an indecent assault upon a solider in a railway carriage. In giving judgment, the Lord Chief Justice, Lord Goddard, said this :-

"The Disciplinary Committee, having had proved to them that the solicitor had been convicted by a jury on both counts and sentenced to three months' imprisonment, struck him off the Roll, and against that sentence he appeals. This court is, and always has been, very loth to interfere with the findings of the Disciplinary Committee either on a matter of fact, or with regard to the penalties, if that is the right word to use, and I think it is because it is a penalty which they impose. If it is a matter of professional misconduct, it would take a very strong case to induce this court to interfere with the sentence passed by the Disciplinary Committee, because obviously the Disciplinary Committee are the best possible people for weighing the seriousness of professional misconduct. There is no suggestion of professional misconduct in this case. That being so, I think this court is bound to consider, as the Court of Criminal Appeal would have to do, whether or not the sentence is in proportion or out of proportion to the misconduct which has been proved."

And at p. 1315 the Lord Chief Justice said this :-

"So far as public confidence is concerned, I think it may be said that lamentable as was this lapse - and it is only fair to say that it is not suggested that it was more than an isolated occasion - it does not seem that the public confidence need be shaken. Of course it is necessary that the honour of the profession should be protected and that an offence of this sort should not be overlooked by the profession, but we have to consider whether in all the circumstances of the case the sentence passed is one which we feel is in proportion to the character of the offence. As I have said, if there was any suggestion against the professional conduct of the solicitor, we should only interfere in the most extreme case, but the court has carefully considered the representations made on both sides and they are quite satisfied that, bearing in mind the finding of the committee that the appellant was guilty of conduct unbefitting a solicitor, which of course is not appealed against, the order is one which is too severe considering the nature of the offence which was proved. It was a shocking offence, no doubt, from a social point of view that a man should act in this way, but in one sense it is no worse in a solicitor than in anybody else and no better in a solicitor than in anybody else, and it is not an offence which can be passed over. We entirely agree that the committee did not think that they were bound to pass this particular sentence. The expression which they use is one very well known to judges and chairmen of quarter sessions; they very often say they cannot overlook the offence and must pass a certain sentence. Having given this case the fullest and most anxious consideration, we have come to the conclusion that we shall set aside the order striking off the Roll and substitute therefor a sentence of suspension for two years."

13. Based on this authority, Mr. Macrae argues that here we have a sentence which is out of all proportion to the offence. It is to be remembered that the judge in the appeal against sentence, and representing the conscience of the public for this purpose, substituted a suspended sentence for the sentence of immediate imprisonment which had been imposed by the magistrate. In our case, a period of 12 months' removal from the register is likely, indeed almost certain, to destroy the appellant's practice and any chance of recovering it. Furthermore, Mr. Macrae drew to our attention a number of cases, in my judgment, very serious cases, of long term frauds committed by doctors, against insurance companies and the Government, where removal from the register for 1 year or less had been ordered in the case of the doctors concerned.

14. This offence was, as Mr. Fitzpatrick characterised it in his address to us on behalf of the Council, a spiteful offence. But it appears to have been "a one off", extraordinary, piece of behaviour by a doctor of whom there was medical evidence before the Council (put also before us) to show that he was or may have been in a state of mental stress of quite some severity at the time when the offence was committed.

Conclusion

15. I have to say that, although the case has given me much anxiety, I am in the end convinced there was here a failure to sentence the appellant in due proportion to the gravity of his offence. I would be extremely reluctant to interfere with the decision of the Council on a matter of sentence in a "professional misconduct" case. But this is not such a case (although I do appreciate of course that the theft here was from a fellow doctor). This is an ordinary case of a criminal offence in relation to which the criminal justice system has spoken in the public interest and has concluded that a suspended sentence for 6 months would meet the gravity of the offence.

The result

16. Having regard to this factor, and to the fact that, in what appear to me to be much more serious criminal offences, lighter sentences than that imposed here have been imposed by the Council, I would be in favour of reducing the sentence here to a period of 6 months' removal from the register and in substituting that sentence for the sentence of 12 months' removal imposed by the Council.

17. To that extent, in this quite exceptional case, I would allow this appeal.

Leong, J.A. :

18. I agree that the appeal should be allowed. I would only add this.

19. Having regard to the report of the psychiatrist Dr. Chan that the appellant at the time of the offences was under a state of stress which the Medical Council obviously accepted, and, as Mr. Macrae has put it, the extraordinary and bizarre circumstances of the offences, the sentence of 12 months removal imposed by the Medical Council is obviously disproportionate and out of tune with previous sentences imposed by the Council on cases involving criminal convictions of a much more serious nature.

20. Reluctant as I am in interfering, this is one of the extreme cases that the court should interfere. I agree that the sentence should be one of six months removal and I allow the appeal.

Rogers, J.A. :

21. I wish only to add a few observations in relation to the sentence. Whereas I have doubts as to this matter and I confess I have misgivings as to whether this is a case where this Court should interfere, I do not consider that I should necessarily dissent from the decision of my brethren.

22. The doctor has been convicted of theft and attempting to obtain property by deception.

23. The facts of the offences show, to my mind, a degree of premeditation and planning. They show a breach of trust. Trust is an important element in a doctor and one which the public has a right to expect in a doctor.

24. The sentence imposed namely removal from the register for a period of one year is not one in the circumstances of the case which struck me at the outset as being excessive.

25. A comparison has been made with the penalties imposed in other cases. In those cases, the offences were not really directly comparable. Nevertheless, the penalties in other cases were much lighter than the present. I consider however that there is force in the argument that in some of those cases which have been shown to us, particularly the fraud cases, the sentences imposed were too lenient.

26. As to the characteristics of the present offences, I do see that it can be said that the offence was a bizarre offence and possibly committed whilst under stress.

27. In the circumstances, with a great deal of diffidence, I would not dissent but I would say I regard this as the high end of leniency.

Representation:

Mr. A.C. Macrae (M/s. Ng, Tam, Ko & Chan) for the Appellant

Mr. David Fitzpatrick (Department of Justice) for the Respondent