Dr Benjamin Mark Herbert v. Veterinary Surgeons Board of Hong Kong

CACV 235/2016

[2018] HKCA 337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 235 OF 2016

(ON APPEAL FROM THE DISCIPLINARY INQUIRY

OF THE VETERINARY SURGEONS BOARD ON 29^th AUGUST 2016)

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J U D G M E N T

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Hon Yuen JA:

1.This is an appeal by Dr Mark Herbert Benjamin (“the appellant”) from an order of an inquiry committee (“IC”) of the Veterinary Surgeons Board (“VSB”) established under s.18(1) of the Veterinary Surgeons Registration Ordinance Cap.529 (“the Ordinance”).

2.1.On 29 August 2016, the IC found that the appellant had committed a disciplinary offence of misconduct in a professional respect¹ on a charge that he had on divers occasions from 2009 to 2010, while Ms Gale Valencia Mendoza (“Ms Mendoza”) was working as an employee of Pets Central (HK) Ltd (“PC”) in which the appellant practised as a registered veterinary surgeon, sexually harassed her in that he “improperly or otherwise unnecessarily sent mobile phone text messages with sexual undertone to Ms Mendoza”.  

2.2.Pursuant to its powers under s.19(a) of the Ordinance, the IC ordered the Secretary to the VSB (“the Secretary”) to remove the appellant’s name from the register of registered veterinary surgeons for a period of three months and not restore his name to the register unless and until he successfully applied for such restoration pursuant to s.21(3) of the Ordinance.

3.The appellant has appealed against both the finding that he had committed the disciplinary offence as well as the order.

4.To understand the submissions made on appeal, it is necessary to set out the relevant background.  

Background

5.The appellant was Director of Veterinary Services at PC which operated a number of clinics in various districts of Hong Kong.  Ms Mendoza had qualified as a veterinary surgeon in the Philippines but was not qualified to practise in Hong Kong.  She came to Hong Kong and started working in May 2009 as a veterinary technician at PC. 

6.1.It was alleged by Ms Mendoza that beginning in September 2009 and up to the end of March 2010, the appellant had

(i)   made remarks of a sexual nature to her, and

(ii)   made (or attempted to make) body contact of a sexual nature with her without her consent. 

These were the subject of two other charges before the IC, which it found were not proven in the circumstances which are set out later in this Judgment².

6.2.Meanwhile, over the same period, a number of mobile phone text messages were sent from the appellant to Ms Mendoza.  One, sent on 4 October 2009 at 10:51 pm, said:

“Want to do something w me? Wouthsex”.

Another, sent on 23 February 2010 at 10:01 pm, said:

“Actually I want u – I miss u baby”.

Ms Mendoza’s complaint to the EOC  

7.1.On 31 March 2010, after an alleged incident four days earlier, Ms Mendoza sent an email to the Equal Opportunities Commission (“EOC”) to lodge a complaint against the appellant.  Apart from allegations of incidents involving sexual remarks and body contact, Ms Mendoza also said:

“There are even text messages that are still saved on my phone from him. Obscene, wanting/inviting sex kind of way”.

7.2.The following month, PC gave Ms Mendoza notice of termination.  She immediately ceased to work at PC on 11 April 2010 and made a complaint against the appellant to the police the following day. 

7.3.On 12 May 2010, the EOC wrote to PC making inquiries.  On 31 May, the appellant resigned from PC. 

The appellant’s response to the EOC

8.On 9 September 2010, the appellant sent a 4-page written response to the EOC.  Apart from setting out his defence to the alleged incidents of sexual remarks and body contact, he said the following:

“I would suggest that we should also consider significant cultural differences between Ms Mendoza and myself. In my western culture certain gestures would indicate support/care/concern and compassion rather than sexual overtones, yet I can appreciate how in a different culture these could be misinterpreted.

...

Till date I have no interest in sexual intimacy with Filipino’s.

...

Yes all the listed short messages appear to originate from my telephone number, except the last, seems the image of the mobile phone is also different.

The phrase “wouthsex”: Refers: definitely without any sexual intent.

It appears to me that these messages have been singled out, without the preceding and/or following content, possible out of context, and definitely not including any of Gales advances, neither any support of her dismissing/rebutting any suggested sexual advances”. (Emphasis added).

Ms Mendoza’s complaint to the VSB

9.1.On 3 September 2011, Ms Mendoza made a complaint to the VSB for “gross professional and unethical behaviour.  Dr Benjamin made repeated sexual advances to me physically, verbally and through text messages while I was working with him at Pets Central Asia in 2009 and 2010”.  A detailed account was attached.

9.2.A few months later, on 24 October 2011, Mr Peter de Krassel, Chairman of Pets Central (Greater China (HK) Ltd wrote a letter to the VSB which contained the following statement:

“Dr Benjamin is a sexual predator that is a danger and disgrace to the profession”.

9.3.On 29 February 2012, Mr de Krassel also made a complaint to the VSB, regarding the appellant’s “sexual harassment of female employee Jan 07-10”.

10.On 15 November 2012 the VSB, having received relevant documents from the EOC, wrote to the appellant inviting him to make a written response to Ms Mendoza’s complaint, a copy of which was attached.  The appellant was informed that his written response would help the Preliminary Investigation Committee decide whether and how to process the complaint, and that it may also be included and used as part of the case by the Secretary in an inquiry under s.18 of the Ordinance, should the Board determine that such an inquiry be held in the future.

The appellant’s responses to the VSB

11.1.On 30 January 2013, the appellant provided a 3-page written response.  It is significant that he made the following statement:

“I wish to reiterate that I had NO sexual/emotional feelings for Mrs (sic) Mendoza at any time, our relationship was merely professional, and my concerns for her/her work performance, or any other staff for that matter was only professional/managerial”.

11.2.On 28 August 2013, the appellant requested an extension to provide a further response and possibly to consult legal advisers. 

11.3.Subsequently on 16 September 2013, the appellant emailed the VSB saying:

“Please be informed that after due consideration + legal advise (the latter was responsible for delayed response ... my apologies) I shall not be adding any further info/details to said cases over and above documents/responses you already have”.

Equal Opportunities legal action

12.1.Shortly thereafter, on 25 September 2013 Ms Mendoza acting through the EOC issued proceedings against the appellant in the District Court under the Sex Discrimination Ordinance, Cap.480 (“SDO”).  In the statement of claim, various allegations of sexual harassment were set out, including the sending by the appellant of mobile phone text messages to Ms Mendoza with sexual undertones, particularly the one sent at 10:51 pm on 4 October 2009³.

12.2.The appellant did not file a notice of intention to defend.  Consequently, on 1 November 2013, interlocutory judgment was entered against the appellant for damages to be assessed and costs.

12.3.On 30 October 2015, a Consent Order in the form of a Tomlin order was made⁴.  The terms in the schedule to the order were that:

(1)   the appellant shall issue a written apology which contents shall be agreed by both parties;

(2)   the appellant shall pay a sum of $300,000 as compensation to Ms Mendoza;

(3)   Ms Mendoza shall withdraw or discontinue any and all complaint(s) to the VSB and any institution of similar nature within 14 days of payment of compensation;

(4)   Ms Mendoza shall not disclose or mention the terms of the settlement and incidents pleaded in and relating to the Statement of Claim in the action to any unrelated third party except if compelled by court order or law.

12.4.On 17 November 2015, the EOC informed the VSB as follows:

“Regarding the complaint of sexual harassment against Dr Benjamin, please be advised that the Court case DCEO 10/2012 has been settled out of court. One of the conditions of settlement is that Ms Mendoza discontinues her complaint to the [VSB]. This letter serves as notice to this effect.

Ms Mendoza will be making no further comment in relation to this matter”.

Inquiry

13.In the meantime, on 7 August 2015 (prior to the Consent Order), the Secretary had sent the appellant a Notice of Referral for Inquiry, informing him that an inquiry would be held.

14.1.On 29 August 2016, the IC convened to hear the complaints lodged by Ms Mendoza and Mr de Krassel.  The appellant was represented by counsel Mr Wilson Tam.

14.2.Mr Enzo Chow counsel for the Secretary informed the IC that Ms Mendoza was not present, but that he would proceed with the charge and present the evidence that the Secretary had, leaving it to the appellant to make submissions on the admissibility and strength of the evidence⁵. Mr Tam’s response was that his position was neutral and he had no submission on that course of action⁶.

1

14.3.Mr Chow then opened his case and took the IC through the documents including Ms Mendoza’s statements which he sought to adduce as evidence.  Mr Tam applied to exclude Ms Mendoza’s evidence in the interests of fairness as she could not be cross-examined⁷.  Mr Chow’s response included the submission that “... apart from the statements made by Ms Mendoza, there are documents attached to the statements, including the captures of voicemail -, of messages from Ms Mendoza’s phone in relation to the complaint against Dr Benjamin ...”.

14.4.The advice of the IC’s Legal Adviser⁸ was that Rule 29(1) of the Rules of the Veterinary Surgeons Board (Disciplinary Proceedings) stated that the rules of evidence do not apply to the proceedings of an inquiry and that Rule 29(2) provided that evidence may be taken by the IC by statement, but that Rule 29(6) provided that the IC may decline to admit the evidence of any deponent to a document who is not present for cross-examination.  It was therefore a matter for the IC’s exercise of discretion⁹.  

14.5.After considering the submissions of both counsel and the advice of the Legal Adviser, the IC decided to accept the evidence despite Ms Mendoza’s absence, subject to considering its weight at the appropriate time¹⁰.

14.6.The other complainant, Mr de Krassel, attended the hearing and was cross-examined.  The appellant did not give evidence.

The Inquiry Committee’s Finding   

15.1.At the conclusion of the hearing, the IC decided that the Secretary had failed to prove charges (i) and (ii)¹¹ “because they rely crucially on the evidence of Ms Mendoza who has failed to appear and be subject to cross-examination”.

15.2.The IC went on to decide:

“As regards charge (iii), however, we are of the opinion that Dr Benjamin’s own letters in the bundle to the [EOC] dated 9 September 2010 (the “EOC letter”)¹² and to the Preliminary Investigation Committee dated 30 January 2013 (the “PIC letter”)¹³ contain admissions that prove the allegation in this charge.

The text message singled out by the Secretary as having a sexual undertone constituting sexual harassment in the Secretary’s ‘Statement of Substance of Complaint’ is a message with the content ‘Want to do something w me? Wouthsex’.

In his letter to the EOC Dr Benjamin gave an explanation of this message to the EOC. The fact that he did so implies acceptance that he sent it to Ms Mendoza and we also note that Mr Tam in his closing speech agreed that the text messages did happen. Dr Benjamin’s explanation of the message to the EOC was that the phrase ‘Wouthsex’ meant ‘without any sexual intent’.

At the material time Ms Mendoza was working as a veterinary technician in the clinic where Dr Benjamin was working as a veterinary surgeon. In the PIC Letter Dr Benjamin stated that he had no sexual/emotional feelings for Ms Mendoza at any time and their relationship was merely professional. On Dr Benjamin’s own case there was no personal relationship between him and Ms Mendoza that could justify Dr Benjamin inviting Ms Mendoza, a more junior staff member over whom he had authority, to do something with him with sexual undertones.

In the circumstances, we consider the message amounted to sexual harassment in that it constituted unwelcome conduct with sexual undertones that was most likely to be offensive, humiliating or intimidating for Ms Mendoza. In our view, the sending of the message by Dr Benjamin was a falling short of the standard expected of a registered veterinary surgeon at the time and we find him guilty of misconduct in a professional respect on charge (iii) accordingly”. (Emphasis added).

Appeal

16.The appellant appealed. 

17.1.The 1^st ground of appeal is that as Ms Mendoza was not a patient or customer of PC, any sexual harassment of her by the appellant could not in law be “misconduct in a professional respect”.  Mr McGowan, counsel for the appellant, referred to the Code of Practice for the Guidance of Registered Veterinary Surgeons¹⁴.  He submitted that it “set the parameters of ‘misconduct in a professional respect’ as limited to acts bearing direct relationship with the actual practice of a veterinarian”¹⁵, and the “welfare of animals is the prime consideration” to which other remaining principles must relate¹⁶. Accordingly, Mr McGowan argued, as the text message did not relate to the welfare of animals, the IC was not empowered by law to find that any sexual harassment by the appellant of Ms Mendoza was misconduct in a professional respect.

17.2.This argument was similar to a preliminary argument raised by Mr Tam at the hearing before the IC, which was not accepted¹⁷.

18.In my view, there is nothing in this ground of appeal.  First, s.17(1)(a) provides that a registered veterinary surgeon commits a disciplinary offence if he is guilty of misconduct in any professional respect.  There is no definition of the words “misconduct ... in any professional respect” in the Ordinance.  Section 18(9) provides that the IC “may, in deciding whether a person has committed a disciplinary offence, have regard to any rules of professional conduct or Code of Practice made or issued by the Board”.  These words make it clear that in deciding whether a registered veterinary surgeon has been guilty of misconduct in any professional respect, the IC is not restricted to determining only whether there has been a transgression of only those matters set out expressly in the Code.  It has a broad purview with no restriction to conduct occurring within a veterinary surgeon’s practice only.

19.A number of Hong Kong and UK cases support this view that misconduct in a professional respect includes personal behaviour which falls short of standards and reflects adversely on the profession. 

Albert Wou v The Medical Council of Hong Kong

20.1.In Albert Wou v The Medical Council of Hong Kong¹⁸, a doctor attacked his wife at home with a knife.  He was charged with, and pleaded guilty to, unlawful wounding, but the District Court judge exercised a power¹⁹ to make a probation order without convicting him. 

20.2.The doctor was charged by the Medical Council (“the MC”) with misconduct in a professional respect.  The MC found him guilty and he appealed to this court. 

20.3.On appeal his counsel argued, in a submission similar to that made by Mr McGowan before us, that misconduct in a professional respect must relate in some sense to the practice of the doctor’s profession, and the attack on his wife (“done as a husband, not as a doctor”²⁰) in the context of a matrimonial dispute was not so related.

20.4.This court (Cons VP, Clough and Power JJA) rejected that argument as being too narrow a construction of the words “misconduct in a professional respect”.  Clough JA (with whom the other members of the court agreed) held that these words

“must be wide enough in their context to include misconduct by such a practitioner otherwise than in the pursuit of his practice which the Council, as his disciplinary body, reasonably determines to be misconduct of such a character and degree of seriousness that it tends to damage the reputation of his profession because it has been committed by such a practitioner”²¹.

20.5.It is correct that Clough JA did refer to the doctor as being a “member of a profession whose primary purpose is to heal humanity”²² but the rationale of the decision was that the doctor had attacked his wife with a knife in circumstances amounting to an offence of unlawful wounding, and on that basis the court held that the MC was entitled to come to the “reasonable conclusion that it was conduct of such a character and degree of seriousness that it tended to reflect adversely on the profession in which the appellant practised”²³.

A County Council v W (Disclosure)

21.1.A similar case is A County Council v W and others (Disclosure)²⁴, a decision which was approved by the Privy Council in Roylance v General Medical Council) (No.2)²⁵. 

21.2.In W (Disclosure), a doctor’s daughter alleged in care proceedings that he had sexually abused her.  The allegation was accepted in those proceedings. 

21.3.A complaint was made to the General Medical Council (“GMC”) by the local authority.  The preliminary screener of the GMC sought information from the Family Court in the care proceedings. 

21.4.The doctor opposed the application.  One of his grounds of opposition was that the alleged conduct “was not carried out ‘in a professional respect’ because such conduct does not relate to the practitioner’s patients, profession or colleagues”²⁶ since it “did not relate to treatment of a child, but stepped outside that”.

21.5.This argument was rejected by Cazalet J. 

22.This decision was approved in Roylance²⁷, where it was held:

“To take the point a stage further, serious professional misconduct may arise where the conduct is quite removed from the practice of medicine,but is of a sufficiently immoral or outrageous or disgraceful character. An example can be found in A County Council v W (Disclosure) ... where a question arose whether the alleged sexual abuse by a father of his daughter, the father being a medical practitioner, could constitute serious professional misconduct. It was argued that any sexual abuse was too remote from the father’s occupation as a doctor since it was outwith any medical treatment of a child. But Cazalet J held, at p581 that:

‘ it seems to me that this doctor can be said, if he has sexually abused his daughter, to have demonstrated conduct disgraceful to him as reflecting on his profession and/or indeed conduct disgraceful to him as a practising doctor’.

What is important here is not only the fact that disgraceful behaviour remote from the carrying on of a professional practice may constitute serious professional misconduct, but also that the duty of a doctor to himself, if not to his profession, exists outwith the course of his professional practice. One particular concern in such cases of moral turpitude is that the public reputation of the profession may suffer and public confidence in it may be prejudiced”. (Emphasis added).

The Queen (on the application of Remedy UK Limited) v The General Medical Council

23.In The Queen (on the application of Remedy UK Limited) v The General Medical Council²⁸, Elias LJ in the Administrative Court of the Queen’s Bench Division analyzed a number of authorities in the UK in respect of misconduct and concluded at §37:

“(1) Misconduct is of two principal kinds. First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession.

...

(6) Conduct falls into the second limb if it is dishonourable or disgraceful or attracts some kind of oppobrium; that fact may be sufficient to bring the profession of medicine into disrepute. It matters not whether such conduct is directly related to the exercise of professional skills.” (Emphasis added).

24.It should however be noted that the use of words such as “disgraceful” or “dishonourable” in these cases does not mean that the “litmus test”²⁹ coined by counsel in Dr To Chun Fung Albert v The Medical Council of Hong Kong³⁰has the force of law.  As this court (Mayo VP, Le Pichon JA and Yeung J) held in that case, it is not to the point whether the relevant conduct can be fitted within the meaning of those words.  Rather, the test is whether there has been a falling short of standards, of which the best judges are the members of the profession itself.

25.Although, as Mr McGowan submitted, the cases discussed above were cases involving medical doctors and not veterinary surgeons³¹, in my view that is a distinction without a difference.  The principled approach set out in §§19 and 24 above is the same, and that must especially be so when both professions are dedicated to caring for other living beings.

26.1.In any event, another point against Mr McGowan’s argument (that the parameters of misconduct are to be found only in the express provisions of the Code) is that it is stated in the Code itself that it is only for “guidance”.  Mr Tam was therefore correct when he made the following submissions at the hearing before the IC:

“... to clarify the position at the outset, it is not the defence submission that the code or the ordinance have provided absolute precision. This is not what the defence is saying. So the defence will agree that the ordinance and the code should not be read as an exhaustive definition and it is neither the defence submission that they have recognised and anticipated every possibility in the changing circumstances in this whole new world”. (Emphasis added).

26.2.Mr McGowan sought to argue that the Legal Adviser had acknowledged that the Code was exhaustive by referring us to a passage in the Transcript³².  However it is clear from that passage that the Legal Adviser was explicitly accepting that s.17(1) was exhaustive, not that the Code provided an exhaustive list of conduct which would be regarded as misconduct in a professional respect.

27.I come now to the 2^nd, 4^th, 5^th and 6^th grounds of appeal which Mr McGowan dealt with together.  They were to the effect that Ms Mendoza’s absence deprived the appellant of a fair trial because she could not be cross-examined.

28.The short answer to these grounds is that the IC clearly took this point into consideration as it found charges (i) and (ii) not proved³³. In finding charge (iii) proved however, the IC found the text message spoke for itself.  When one communicates with a co-worker in a professional relationship, in the normal course one would simply not expect any references to sex. Assuming in favour of the appellant that “wouthsex” meant “without sex”, the fact that he needed to reassure Ms Mendoza that what he proposed to do with her that evening would be “without sex” set an underlying sexual tone to the message.

29.1.Mr McGowan submitted that the IC considered the text message out of context.  However, the appellant did not indicate any context which might have given a different meaning to the messages.  He did not, for instance, assert that he and Ms Mendoza were in a relationship.  On the contrary, in his 3-page written response to the VSB on 30 January 2013, he made the following statement:

“I wish to reiterate that I had NO sexual/emotional feelings for Mrs (sic) Mendoza at any time, our relationship was merely professional, and my concerns for her/her work performance, or any other staff for that matter was only professional/managerial”.

29.2.Nor did the appellant seek to assert, for instance, that the text message was part of a thread containing only innocent banter, in which case one would expect him to produce other messages in the thread.  He was given ample opportunity to do so.  Despite requesting an extension of time on 28 August 2013 to provide a further response and possibly to consult legal advisers, on 16 September 2013 he informed the VSB that “after due consideration and legal advice”, he would not add any further information or details over and above the documents and responses the VSB already had.

29.3.Nor can it be said that the “wouthsex” message was a single aberration not amounting to sexual harassment.  The appellant’s use of intimate language in another message where he said “I want u - I miss u baby” contradicts his denial that he was pursuing his personal interest in Ms Mendoza. 

30.I do not see therefore how the decision of the IC can be challenged on any of the 2^nd, 4^th, 5^th or 6^th grounds. 

31.The 7^th ground of appeal suggested that in finding the appellant liable on charge (iii), the IC must have failed to apply the relevant standard of proof.  However the parties had agreed on the relevant standard of proof, and the IC had received advice from the Legal Adviser on the same standard.  There is no reason why the IC would have applied a different one, nor is there any suggestion in the materials that it had.  This ground must also be rejected.

32.1.Finally the 8^th ground complains about “prejudicial material” in the form of Mr de Krassel’s letter to the VSB³⁴ and his evidence.  However the admission of these pieces of evidence was not challenged at the hearing of the inquiry, and in any event the IC expressly stated:

“While Mr Dr Krassel was present and gave evidence, he did not witness any of the alleged incidences of sexual harassment and was only able to give hearsay evidence of rumours and complaints of misconduct. As a result his evidence was also not of any real assistance to us”.

32.2.It is clear from the IC’s attitude to Mr de Krassel’s evidence that it had not been influenced against the appellant, and it had no recourse to any “prejudicial materials”. Accordingly there is nothing in this ground either. 

33.Finally, a word about the 3^rd ground of appeal, which is with regard to the Equal Opportunities legal action.  The VSB was informed that the action had been settled and that Ms Mendoza would withdraw her complaint³⁵.  However, it was not argued by the appellant’s counsel at the inquiry, nor by Mr McGowan before this court, that it followed as a matter of law that the IC could no longer hear the complaint against the appellant.  In my view that approach was, and is, correct.  Not only did Mr de Krassel pursue his complaint which was along the same lines, the VSB could not shut its eyes to the text messages from the appellant which had been placed before it as the governing body of the profession.  

The IC’s Order

34.As mentioned earlier in this Judgment, the IC ordered the Secretary to remove the appellant’s name from the register of registered veterinary surgeons for a period of three months and not restore his name to the register unless and until he successfully applied for such restoration pursuant to s.21(3) of the Ordinance.

35.1.In the appeal from this order, Mr McGowan pointed out that the settlement with Ms Mendoza (which included a payment to her of $300,000 in compensation) had not been put forward as a mitigating factor before the IC.  This is supported by the transcript of the submissions in mitigation. 

35.2.However the settlement was known to the appellant’s counsel at the time, and in my view, absent an allegation that he had been incompetent in not choosing to present this point in mitigation, this court should not second-guess why it was not presented and whether the IC would have been more lenient had the point been presented. 

35.3.In my view what is more important is that the payment made to Ms Mendoza was compensation for damages and loss she had suffered personally, whereas the IC was concerned with the appellant’s breach of duty to his profession.  The payment of damages to Ms Mendoza did not ameliorate the appellant’s conduct which reflected badly on the reputation of his profession, which is guarded by its governing body.  As the UK Supreme Court has said, “the primary purpose of professional disciplinary proceedings is not to punish, but to protect the public, to maintain public confidence in the integrity of the profession, and to uphold proper standards of behaviour”³⁶. Accordingly I am not persuaded that the IC would have come to any other decision in respect of the order made against the appellant, even had the point been presented in mitigation before it.

36.1.In answer to Mr McGowan’s other arguments in respect of the order, it is notable that the IC expressly stated that it had “regard to the serious nature of the misconduct found”³⁷.  In Lau Koon Leung v The Medical Council of Hong Kong³⁸and Registrar of the Institute of Certified Public Accountants v Leung Kam Man, Victor³⁹, this court has said that the assessment of the seriousness of misconduct was essentially a matter for the representatives of the profession in light of their experience.  As such the appellate court would be slow to interfere with the penalties ordered and would accord an appropriate measure of respect to the governing body in deciding what that body considers necessary to maintain professional standards of behaviour⁴⁰. 

36.2.In this respect, Mr McGowan sought to argue that the approach in Lau had been “overtaken”, referring us to §119 of the Court of Final Appeal’s judgment in Solicitor (24/07) v Law Society of Hong Kong⁴¹.  However it is apparent that he has misread that paragraph as it does not deal with penalties, but with the court’s approach to findings of liability when the professional body’s tribunal has misread the evidence before it.

37.1.Finally Mr McGowan submitted that the order that a restoration of the appellant’s name on the register was conditional upon his successful application to restore was an aggravation of the order, in that it imposed an extra hurdle which entailed an extended period of de-registration.

37.2.However s.21(3) of the Ordinance expressly stipulates that:

“Any person whose name has been removed from the register under this Ordinance may apply to the Board for the restoration of his name to the register, and the Board may, after such inquiry and subject to such conditions as it may consider desirable, allow or refuse the application”.

37.3.The term “removal” refers to the orders that may be made by the IC under s.19.  It is notable that while s.19(a) refers to an indefinite removal, s.19(b) also refers to a “removal”, albeit for a period, not exceeding 2 years, as the IC may think fit.  Given the clear wording of s.19(b), there is no justification to interpret the order as merely a suspension from registration, such that after the stated period, the name of the veterinary surgeon would be automatically restored to the register.  The issue has been definitively decided by the Court of Final Appeal against Mr McGowan’s argument in Medical Council of Hong Kong v Chow Siu Shek⁴², where similar legislation has been interpreted as follows:

“It is significant ... that even where removal is for a specified period, it is nevertheless removal rather than suspension ...

Where someone is merely suspended from something for a specified period, it follows from the very nature of suspension that the mere expiry of that period automatically puts him back where he used to be before he was suspended therefrom. Removal, even if only for a specified period, is of a different nature. Where something, here a someone’s name, has been removed from somewhere, here a register, it naturally takes some positive act to restore it to that place. If the intention were that doctors may automatically return to practice after a specified period, suspension rather than removal would have been the obvious choice. But for doctors the legislature chose removal rather than suspension”. (Emphasis added).

37.4.This ground therefore also fails.

Order on appeal

38.For the reasons set out above, I would dismiss the appeal with costs.

Hon Chu JA:

39.I agree with the Judgment of Yuen JA and the order proposed.

Hon G Lam J:

40.I agree with the Judgment of Yuen JA.

Mr James H M McGowan instructed by Christopher K Y Wong for the Appellant

Mr Edward Shum instructed by Department of Justice for the Respondent