Dr Ip Kay Lo, Vincent v. The Medical Council of Hong Kong

CACV000295/2002

CACV 295/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 295 OF 2002

(ON APPEAL FROM THE MEDICAL COUNCIL OF HONG KONG)

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Coram: Hon Cheung JA, Yuen JA and Burrell J in Court

Dates of hearing: 1 - 2 April 2003

Dates of further materials and submissions: 13, 17 and 18 June 2003

Date of Judgment: 28 July 2003

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JUDGMENT

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Hon Cheung JA:

1.This appeal raises important issues on the application of the Basic Law.

The appeal

2.Dr. Ip Kay Lo Vincent ("Dr. Ip") was found guilty by the Medical Council ("the Council") after a disciplinary inquiry ("the inquiry") of professional misconduct. On the first day of the inquiry, he informed the Council that he would need legal representation to assist him. He requested an adjournment of the hearing. The request was refused and the inquiry proceeded. The Council ordered his name to be removed from the General Register for three years. Dr. Ip now appeals to this Court.

The Basic Law

3.At the forefront of the appeal is whether Article 35 of the Basic Law is infringed. Article 35 provides that :

“ Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.

Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel."

The Article in Chinese is as follows :

「 香港居民有權得到秘密法律諮詢、向法院提起訴訟、選擇律師及時保護自己的合法權益或在法庭上為其代理和獲得司法補救。

香港居民有權對行政部門和行政人員的行為向法院提起訴訟。」

The two matters

4.There are two matters that call for comment. The first is on the meaning of the word "courts" in Article 35. The second is on the meaning of the right to "choice of lawyers for representation in the courts".

The meaning of courts

5.On the first matter, the issue is whether the word "courts" is confined to courts such as the Magistracy, District Court, High Court and Court of Final Appeal or extends to tribunals such as the inquiry of the Council. Mr. Grossman SC, counsel for the Council, informed the Court that due to the limited time he had, he was unable to conduct research on this topic (the Court invited the parties to address on Article 35 one day before the hearing of the appeal).

6.The Basic Law is an instrument which sets out fundamental principles rather than detailed provisions like an ordinary statute. One would not expect the Basic Law to give a detailed definition of courts and tribunals. The use of tribunals are so prevalent in Hong Kong that it will need a strong case to justify the exclusion of tribunals from coming under the general word "courts".

7.Further, the Basic Law being a constitutional document should be given a purposive interpretation. The purposive approach will provide the flesh to these principles. Article 35 is clearly an article which is concerned with the legal rights of a Hong Kong resident. This being the case, the word "courts" should not be confined solely to those courts mentioned above.

8.In my view the word "courts" should extend to the tribunals performing judicial functions. A judicial decision is made according to the rules and not policies (see Wade & Forsyth on Administrative Law 8th Ed. page 40). Such a decision has to be made judicially because it affects the rights of a person as authoritatively reaffirmed in Bridge v. Baldwin [1964] A.C. 40.

9.Without deciding more than it is necessary, my view is that the word "courts" extend to statutory tribunals like the inquiry of the Council which is established by section 21 of the Medical Registration Ordinance (Cap. 161) ("the Ordinance") with the procedures being governed by the Medical Practitioners (Registration and Disciplinary Procedure) Regulation ("the Regulation").

10.The inquiry has to make decisions according to legal rules and principles. The decision of the inquiry affects the rights of the parties. A medical practitioner subjected to the inquiry faces severe penalties such as having his name removed from the General Register. This is a situation where legal representation is most required.

Ambit of the rights

11.As to the second aspect, the right under Article 35 is the right to have legal representation in the courts if the party wishes to do so. It is not concerned with the provision of free legal service by the government. It also does not enable the litigant to insist to have a particular lawyer, even though that lawyer may not be available to handle the case or is not willing to represent him.

12.In order to achieve the objective under Article 35, the fundamental requirement is to ensure that the litigant is given an opportunity to seek legal representation. In practical terms it means that the court should grant an adjournment when it is asked by a litigant in person so that he may find a lawyer to represent him. If, in such a case, an adjournment is refused, I fail to see how the substance and the spirit of Article 35 can ever be implemented. The rights given by Article 35 can only be exercised if the litigant is given a chance to find a lawyer before the hearing begins. The court should, of course, have the discretion of whether to grant the adjournment or not. But where the application is made in good faith, the discretion should be exercised in favour of the party seeking the adjournment.

Medical Registration Ordinance

13.The importance of legal representation is emphasized by the Ordinance where at section 24(1) it is expressly provided that :

“ The complainant in any inquiry under section 21 and the person whose conduct is the subject of such inquiry shall be entitled to be represented by counsel or by a solicitor throughout the inquiry."

This being the case, all the more an opportunity should be given to a party by an adjournment in order for him to seek legal representation.

Comparative jurisprudence

14.A survey of comparative jurisprudence shows that this is the approach adopted by courts in interpreting similar, although not identical constitutional provisions. It should be pointed out at the outset that Article 35 draws no distinction between civil and criminal matters. The right to legal representation applies to both types of cases. This is unlike some constitutional provisions or human right conventions which make the provision of legal representation only available in criminal cases. For example, Article 6 of the European Convention on Human Rights ("the Convention") which is adopted by the United Kingdom Human Rights Act 1998, provides that :

“ (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

(3) Everyone charged with a criminal offence has the following minimum rights :

(a) ─

(b) ─

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) ─

(e) ─" (emphasis added)

15.For the purpose of this case, it is therefore not necessary to consider whether a disciplinary inquiry is criminal in nature as discussed in cases such as R v. Securities and Futures Authority Ltd. and another ex parte Fleurose [2002] IRLR 297 and Wickramsinghe v. United Kingdom [1998] EHRLR 338.

16.Section 20(6) of the Jamaica constitution provides that :

“ Every person who is charged with a criminal offence... (c) shall be permitted to defend himself in person or by a legal representative of his own choice ..."

17.The Privy Council in Robinson v. R. [1985] AC 956 at 966 stated that,

“ the important word used in section 20(6)(c) is 'permitted.' He must not be prevented by the state in any of its manifestations, whether judicial or executive, from exercising the right accorded by the subsection. He must be permitted to exercise those rights."

18.In Dunkley v. R. [1995] 1 AC 49, the Privy Council further held that,

“ where a defendant faces a capital charge and is left unrepresented through no fault of his own the interests of justice require that in all but the most exceptional cases there be a reasonable adjournment to enable him to try and secure alternative representation."

19.In Ricketts v. R. [1998] 1 WLR 1016, a defendant in a criminal trial refused to give instruction to counsel and the judge gave permission to counsel to withdraw. The Privy Council, after referring to Robinson and Dunkley, held that on the facts, it is not possible to say the defendant was not "permitted to defend by legal representative of his own choice."

20.See also R. v. Jones [2002] 2 All ER 113 (trial conducted in the absence of the defendant who had absconded before trial).

21.In Berry Trade Ltd. v. Moussavi [2002] 1 WLR 1910, the English Court of Appeal was concerned with the application of Article 6(3)(c) of Convention. The defendant in a committal for contempt proceeding had previously obtained three adjournments of the hearing. His further application for adjournment was refused by the judge. The other party had in fact offered to fund the defendant's legal representation with the representation of the defendant's choice but the offer was refused by the defendant. Arden L.J., after referring to the right of the defendant to apply for public funding, held that,

“ In my judgment the court should respect that right. It should not compel Mr. Moussavi (i.e. the defendant) to forgo a proper opportunity of exercising that right any more than it could compel him to appoint solicitors and counsel. (That, as such, is not suggested.) In my judgment a person may thus reasonably refuse an offer of the kind which the claimants have made and apply for, or pursue an application for, public funding.

The question which concerned the judge was whether or not it would be proper for the solicitors and counsel to act in these circumstances. As I see it, the question which the judge had to ask was a different question, whether Mr. Moussavi had had an effective opportunity for applying for public funding. The weight to be accorded to giving him this opportunity must, in these circumstances, outweigh other considerations, such as the convenience to other parties and the use of court resources."

Arden L.J. further considered the possible situation if the defendant at the resumed hearing had still not obtained legal representation. She stated that,

“ If, on that occasion Mr. Moussavi still has not obtained legal representation and does not wish to act in person, the court will have to consider, in the light of all the circumstances then prevailing, whether it is reasonable to continue in the absence of legal representation for Mr. Moussavi. In my judgment it is likely that by then he would have had a full and proper opportunity to apply for legal representation."

22.For a review of decisions of other jurisdictions on this topic, see The Law of Human Rights by Clayton and Tomlinson, pages 734-735, 740-741 and 762-763.

Bill of Rights

23.Article 39 of the Basic Law expressly provides for the continued implementation of the International Covenant on Civil and Political Rights ("ICCPR") as applied to Hong Kong. The ICCPR is implemented in Hong Kong by the Bill of Rights. The right of a party in a criminal case or civil case can be found in Article 10 of the Bill of Rights which provides, among other things, that,

“ All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone is entitled to a fair and public hearing by a competent, independent and important tribunal established by law." (emphasis added)

24.Article 10 does not expressly deal with legal representation. A fair trial does not necessarily mean that the parties must be legally represented. If a party chooses to proceed without a lawyer, it cannot be said that there is no fair trial. But if a party considers that he cannot properly represent himself but only by a lawyer and applies for an adjournment so that he can pursue this matter, then the court ought to have granted the adjournment so as to ensure that he has a fair trial. This is a matter that affects both the substance and form of the trial. However, as Article 10 was not argued by Mr. Grossman, it is not necessary to come to a definitive view on this provision.

25.Article 11 of the Bill of Rights further provides, among other things, that :

“ (2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality─

(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it." (emphasis added)

26.This Court in R. v. Fu Yan (1992) 2 HKPLR 109 held that :

“ We find, bearing in mind that which has been said in other jurisdictions and on full consideration of article 11 of the Bill, that there is no absolute right to legal aid in criminal trials or, a fortiori, in appellate proceedings. Nor is there an absolute right to be provided with a full transcript at public expense. Neither public funds nor judicial resources are limitless (cf R v Munroe (1990) 59 CCC (3d) 446). What must be viewed is the interests of justice overall, with a bias towards the interests of the individual appellant. As Mr. Macrae has put it in his submissions, the case must be looked at as a whole and the most significant factor in any assessment of the interests of justice must be whether or not there are merits in the appeal." (per Silke V.P.)

27.In R. v. Mirchandani (1992) 2 HKPLR 196, this Court followed the decision in Fu Yan and held that :

“ Article 11(2)(d) of the Bill of Rights did not contain an absolute right to legal aid without payment. Two conditions must be satisfied for such a grant : "the interests of justice" must require that legal aid be provided and the defendant must "not have sufficient means to pay for it."

These two cases are not relevant to the present case. It is referred to simply to complete the survey on provisions which may affect the rights of a party in litigation.

28.As pointed out earlier, Article 35 of the Basic Law applies to both civil and criminal matters. In this case it is not necessary for Dr. Ip to rely on Article 10 of the Bill of Rights.

Application to adjourn

29.In this case, Dr. Ip had initially informed the Council that he would act in person and he did not have the ability to engage counsel. There was then a discussion on whether his insurer was willing to represent him. The information provided by him on this aspect was not totally clear.

30.Subsequent to the conclusion of the submissions of the parties in this appeal, Dr. Ip by letter dated 14 (sic.) June 2003 (received by the Court on 13 June 2003) provided the letter sent to him by his insurer for the Court's consideration. Apparently there was a disagreement between Dr. Ip and his insurer on the approach to be taken by the lawyer appointed by the insurer on his behalf. The result of this disagreement was that Dr. Ip was not legally represented at the inquiry.

31.Going back to the inquiry, however, whatever may be the position earlier, Dr. Ip then actually asked the Council to grant him an adjournment of the inquiry in order to have legal representation. During a break of the inquiry, he had contacted the lawyer appointed by the insurer whose advice to him was to seek an adjournment of the inquiry from the Council.

32.The Council's refusal was based on the reason that there was no certainty that he would have a lawyer if an adjournment is granted. The Council had adopted the wrong approach. At that stage, its function was to consider the application for adjournment. The right of a party to have legal representation outweighs other consideration such as what the Council perceived to be the chance of him finding a lawyer. The focus must be to allow him an opportunity to find a lawyer of his choice. The decision of Dr. Ip to seek a lawyer came after concern raised by a member of the Council whether he could defend himself. The application to adjourn cannot be viewed as a tactical move by Dr. Ip for the purpose of delaying the inquiry. By then he must have realised the difficulty in conducting his own case after he was asked by the Council to address on matters on law relating to the charge.

33.In my view the Council was wrong to refuse an adjournment and in so doing it deprived Dr. Ip of the protection given by Article 35 of the Basic Law.

The resumed hearing

34.The inquiry did not finish on the first day. At the resumed hearing, Dr. Ip was not legally represented. I do not consider that this would lend support to the decision of the Council in refusing to grant the adjournment. By the conclusion of the first day, Dr. Andrew Koh ("Dr. Koh"), the only witness called in support of the charge had given his evidence. Dr. Ip had also given his evidence in chief and was in the middle of the cross examination by the Legal Officer of the Council. The absence of legal representation at the resumed hearing is not an indication that Dr. Ip's application for adjournment was not a substantial or serious application. It is all too easy to be wise after the event. As Dr. Ip was already in such an awkward situation, namely, conducting the case himself on the first day, I do not think it can seriously be said that he then had the opportunity of finding a lawyer but had chosen not to avail himself of that opportunity. He may be so cowed by the situation that he may choose to carry on without pursuing legal representation.

Prejudice to Dr. Ip

35.The inquiry was called as a result of the complaint by Dr. Koh. The gist of Dr. Koh's complaint is that he had been cheated by Dr. Ip. Dr. Ip had made fraudulent misrepresentations to him when they discussed the possibilities of Dr. Koh joining the medical practice of Dr. Ip. Dr. Koh had successfully sued Dr. Ip in the High Court for damages arising from the deceit. The appeal by Dr. Ip against the decision was dismissed although the amount of damages was reduced.

36.While Dr. Ip was no doubt familiar with the factual background of the case, the inquiry was concerned with his professional misconduct. The nature of the case is different. The charge was so serious that the Legal Adviser to the Council advised it to adopt the criminal standard of proof beyond reasonable doubt in its assessment of the evidence.

37.I would be reluctant to say that, despite the absence of legal representation, Dr. Ip had not been disadvantaged. The issue is not so much as whether the factual background is identical. With the benefit of legal advice, Dr. Ip may choose to defend his case differently. For example, his lawyer may take objections to the charge and its lack of particulars. At the very least, the lawyer may elicit from Dr. Ip's evidence in chief a fuller picture of his defence as contrasted with the present situation where in his evidence in chief, what Dr. Ip did was merely to produce documents to the Council.

38.The charge was based on "fraudulent misrepresentation". While misrepresentation may have been established by the facts, the lawyer may take issue on the element of fraud.

39.There are so many issues involved in this case that it would be dangerous for an appellant court to say that Dr. Ip was not prejudiced by the absence of a lawyer. This is more so given the extremely brief reasons of the decision of the Council. Apart from saying that Dr. Ip was not a credible witness and Dr. Koh was an honest witness, it made no finding of facts and did not give a reasoned decision. The judgments that were already given by the courts in the civil case between Dr. Koh and Dr. Ip are not substitutes for a reasoned decision of the Council. After all, it was the Council who had to make a decision on the charge. The Court of Appeal should not be asked to assume the primary role of a fact finder and assess the evidence afresh in order to determine whether Dr. Ip was prejudiced or not.

The Legal Adviser

40.There were two lawyers present at the inquiry. One was the Legal Officer and the other was the Legal Adviser to the Council whose duties are set out in Regulation 9 of the Medical Registration (Miscellaneous Provisions) Regulation. She advises the Council on any question of law as to evidence, procedure or any other matter. Although she had provided assistance to Dr. Ip in the inquiry, she is not his lawyer and her assistance does not fulfill the requirement of Article 35.

Conclusion

41.In my view, the appeal should be allowed on the basis of infringement of Article 35 of the Basic Law.

Reasons for decision

42.It is necessary to make an observation on the reasons of the decision of the Council.

43.This Court had in an earlier case also involving Dr. Ip namely Dr. Ip Kay Lo, Vincent v. Medical Council of Hong Kong [1998] 4 HKC 257 set out the principle on the requirement of giving reasons for a decision, namely,

“ Although the Council had no obligation to give reasons for decision, the circumstances of this case make it necessary. The facts of the case are simple but the way in which it was prosecuted and the way in which the Council reached their findings of fact cried for a reasoned decision without which an appeal would be difficult." per Leong JA (as he then was).

44.In this case the Council did give reasons for the decision. However, the reasons were extremely brief and in essence they were based on the acceptance of Dr. Koh's evidence and rejection of Dr. Ip's evidence. Both of them had given lengthy evidence. The transcript of the proceedings runs to 557 pages. This is a complex case. Dr. Ip faced a very serious consequence to his professional reputation and livelihood. This being the case, I am of the view that the Council ought to have given a more detailed decision so as to show that it had properly considered the charge.

45.The Court of Appeal hears appeals directly from the decision of the Council. Without a reasoned decision by the Council, it will be required to go through the primary evidence contained in the transcript in order to ascertain whether the decision is correct or not. This cannot be an effective way of dealing with appeals from the Council. Serious efforts have to be made by the Council to implement what this Court has repeatedly said on this topic.

The Order

46.I will allow the appeal by Dr. Ip, quash the decision of the Council and remit the case to the Council for another inquiry.

Hon Yuen JA:

47.This is an appeal from a finding and order of the Medical Council of Hong Kong made on 12 June 2002 that the Appellant has been guilty of misconduct in a professional respect and that (subject to any appeal) the name of the Appellant be removed from the General Register for a period of 3 years.

48.After the hearing of the appeal, further materials found by the Appellant were sent to the Court. On the Court's invitation, further submissions were made on behalf of the Council and by the Appellant in reply.

The Charge

49.The charge against the Appellant, contained in a Notice of Inquiry dated 12 September 2001, was as follows:

"that in or about June 1990, you, being a registered medical practitioner, made fraudulent representations to Dr Andrew K S Koh to induce him to join your medical group practice. In relation to the facts alleged, you have been guilty of misconduct in a professional respect".

Background

50.The Appellant had for some years prior to 1990 controlled a practice in Hong Kong called the Admiralty Doctors Group (ADG). In 1990, he was planning one in Kowloon called the Parklane Doctors Group (PDG).

51.In the summer of 1990, Dr Koh, a Malaysian practising as a surgeon in Australia, learnt of ADG and PDG through his sister in Hong Kong. After a meeting his sister had with the Appellant, he came to Hong Kong and had some meetings with the Appellant and others.

52.Dr Koh has alleged that at these meetings, the Appellant fraudulently and/or negligently made certain misrepresentations to him. The misrepresentations included the following (taken from Ribeiro JA's judgment in CACV 75/2000):

(1) the ADG had made profits of $1m. in 1989 when it had not, the figures shown by the Appellant to Dr Koh having related to a company called Gaylaw the income of which included rent received from properties that had nothing to do with the practice and laboratory service income which did not form part of ADG income;

(2) Dr Koh would be replacing a general surgeon who had been part of the ADG, there being sufficient surgical work available to keep a surgeon working full-time and justifying the expectation of an income of about $60,000 net per month, when the ADG practice generated little demand for surgical services and the departing surgeon had only worked part-time and earned a modest income from practice at ADG;

(3) each doctor's contribution to the management expenses of ADG was about $28,000 per month and was likely to remain the same, when the Appellant was anticipating the rent to increase;

(4) Dr Koh had to contribute $300,000 to join ADG (structured as a purchase of shares in a company called Health Resource Limited ["HRL"] and a company called Masterform), this being a sum which every ADG doctor had had to pay, when no other ADG doctor had actually made such payment.

53.Dr Koh paid $300,000, acquired shares in HRL and Masterform, paid $70,000 as an "entrance fee" in respect of PDG and left Australia in October 1990 to commence practice in Hong Kong in ADG and PDG.

54.Over the course of the 1 1/2 years which followed, Dr Koh found that there was little demand for his services as a general surgeon at ADG or PDG and received less income than he expected. He also faced higher expenses than anticipated by reason of an increase in rent for ADG. Eventually, in March 1992, he left Hong Kong and returned to Australia.

The civil action

55.Dr Koh commenced proceedings in the High Court against the Appellant for damages for misrepresentation and deceit.

56.After an 8-day trial, at which the Appellant was represented by counsel, the late Deputy Judge Li found the Appellant liable for deceit and awarded Dr Koh damages in the total sum of $1.5m.

57.The Appellant appealed. The Court of Appeal allowed the appeal but only to the extent of reducing the damages under one head of claim. The result was that the Appellant was held liable to Dr Koh in the total sum of about $1.17m. together with the costs of the trial and part of the costs of the appeal.

58.The Appellant has since been declared bankrupt.

The disciplinary charge

59.It was against this backdrop that the Medical Council laid a charge of professional misconduct against the Appellant. However the findings of fact made by the trial judge in the action were not binding on the tribunal, nor did the judgment constitute proof of any facts. The Medical Registration Ordinance, cap. 161 ("MRO") only provides for findings of fact in civil cases to be made conclusive proof in disciplinary proceedings in one situation - under s.21(4) MRO, which provides that in an inquiry whether a doctor has been guilty of professional misconduct, "any finding of fact which is shown to have been made in any matrimonial proceedings in a court of the Commonwealth having unlimited jurisdiction in civil matters ... shall be conclusive evidence of the fact found".

60.It was therefore necessary for the tribunal to consider, independently of the High Court action and judgment, the evidence adduced at the inquiry in order to determine:

(a) what representation(s) the Appellant had in fact made to Dr Koh,

(b) whether one or some of them was or were false;

(c) whether the misrepresentation(s) was or were fraudulently made, and

(d) if so, whether, in making one or more of those fraudulent representation(s), the Appellant was guilty of professional misconduct.

61.As noted above, the charge was simply:

"that in or about June 1990, you, being a registered medical practitioner, made fraudulent representations to Dr Andrew K S Koh to induce him to join your medical group practice. In relation to the facts alleged, you have been guilty of misconduct in a professional respect".

No particulars were given by the Council of the representations allegedly made by the Appellant to Dr Koh, or in what respect each representation was alleged by the Council to be false. This is a matter which will be referred to later in this judgment.

Inquiry proceedings

62.The proceedings commenced on 8 May 2002. The Appellant was not represented by counsel or solicitors. Section 24 MRO provides that

" ... the person whose conduct is the subject of such inquiry shall be entitled to be represented by counsel or by a solicitor throughout the inquiry".

At an initial stage of the hearing, the Appellant was asked whether he realized he had the privilege of being legally represented. His reply was that he did, but that he did not have "the ability to be represented".

"Fraudulent Representations"

63.After the charge was read, the Appellant was asked if he had any objection to the charge on a point of law, pursuant to regulation 24 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations.

64.The Appellant said he had many objections on a point of law, but the first point he made was to ask what the bases of the charge were, and specifically whether the charge was based on the judgment in the civil action. This elicited no reply from the Legal Officer although the Legal Adviser advised that the members of the tribunal did not know anything about the judgment. This led the Legal Adviser eventually to ask the Legal Officer to particularise the fraudulent representations allegedly made.

65.The Legal Officer then read out the following "fraudulent representations":

"(1) That the Admiralty Doctors' Group had a vacancy arising from the departure of a general surgeon.

(2) That the Admiralty Doctors' Group was a highly successful 8 year old clinic which had enjoyed over a million dollars profit in the previous year.

(3) That all doctors joining the Admiralty Doctors' Group had to buy shares in the clinic in order to practise in the Admiralty Doctors' Group.

(4) That the management expenses of the clinic were shared by all the doctors working in the clinic and were approximately about $28,000 per month per doctor.

(5) That the management expenses of the clinic borne by the doctor could be reduced if more doctors were recruited in the future.

(6) That all fees charged by individual specialist for operations outside the clinic were entirely their own.

(7) That the take-home pay of doctors would be in the region of about $60,000".

Examples of defects in particulars

66.It can be seen from these particulars that they appear to be defective in that, though they set out what representations were alleged to have been made by the Appellant to Dr Koh, they did not set out what was alleged to be false. As an example, the first "fraudulent representation" that "the Admiralty Doctors' Group had a vacancy arising from the departure of a general surgeon" does not tell anyone (least of all the members of the tribunal who had no knowledge of the judgment) what was false about it. Was it the Council's case that it was false because there was in fact no vacancy at ADG? Or was it false because the vacancy at ADG did not arise from the departure of a doctor, or was the departing doctor not a general surgeon? And in any event, what was fraudulent about the mere representation that the ADG had a vacancy arising from the departure of a general surgeon?

67.It would be noted from paragraph 52 above that, as articulated at the latest in the Court of Appeal judgment, the misrepresentation found in the civil action was not of the mere fact that there was a vacancy in the ADG arising from the departure of a general surgeon. That was only part of a misrepresentation the essential part of which was that there was sufficient work available to keep a general surgeon working full-time so as to justify the expectation of an income of about $60,000 net per month. But that was not the case as presented by the Council at the inquiry, which was that the vacancy at the ADG arising from the departure of a general surgeon was by itself a fraudulent representation, and that the take-home pay of doctors being about $60,000 per month was another, separate fraudulent representation.

68.There are other examples of the difficulties posed by the "fraudulent representations" which were formulated only at the hearing of the inquiry. The fourth "fraudulent representation" was that "the management expenses of the clinic were shared by all the doctors working in the clinic and were approximately about $28,000 per month per doctor". It would appear from the Legal Officer's final submissions that the management expenses were about $28,000 when Dr Koh met the Appellant in June 1990, but the Council's case was that the landlord had conveyed proposed terms to the Appellant in July 1990 and so the Appellant "must have had some idea that there was going to be a rental increase" but failed to mention it to Dr Koh when they met a month before the proposed terms were conveyed. However, this "spin" was never part of the "fraudulent representations" formulated by the Council at the commencement of the inquiry.

69.In spite of the defects in the particulars of the "fraudulent representations" arising from the failure to identify the falsity of the alleged representations, the inquiry proceeded.

Application for adjournment for legal representation

70.The Appellant continued to make objections to the charge "on a point of law" but from the way in which he articulated the objections, it became apparent that he was unable to express himself clearly or to differentiate analytically between making an objection on a point of law, making a submission and giving evidence.

71.This led the Legal Adviser and a member of the tribunal to express their concern that the Appellant did not understand the proceedings. The member considered that the lack of understanding was "at least partially related to the lack of legal representation" (transcript, p17).

72.This led to the Appellant's disclosure that he had in fact wished to be legally represented but that the Medical Protection Society had earlier withdrawn support from him as he had refused to agree to legal representatives making a submission that the inquiry should not proceed in the absence of Dr Koh. However the Medical Protection Society had promised in writing to fund legal representation for the Appellant if Dr Koh attended the inquiry. (The letter from the Medical Protection Society was not before the tribunal, but was sent to this court after the hearing of the appeal).

73.At the inquiry, the Appellant informed the tribunal that when he was served with a witness statement of Dr Koh 10 days before the hearing, he realized that Dr Koh would be attending the hearing and immediately wrote to the Medical Protection Society (in London) asking for legal representation to be provided as promised. However he said he had not received a response from it by the time the inquiry commenced.

74.The Appellant applied to adjourn the inquiry so that he could obtain legal representation. This application was however rejected by the tribunal for reasons which are considered in a latter part of this judgment. The inquiry was ordered to proceed.

75.During the hearing, the Appellant renewed his application for an adjournment to obtain legal representation after having spoken to solicitors in Hong Kong who had previously been instructed on his behalf when funded by the Medical Protection Society. However, the tribunal again rejected his application for an adjournment.

Continuation with and results of inquiry

76.Consequently, the inquiry continued, with incomplete particulars of the "fraudulent representations", and with the Appellant acting without the benefit of legal representation.

77.Dr Koh gave evidence and was cross-examined by the Appellant. The Appellant himself gave evidence the next day. The hearing was then adjourned to 12 June when the Appellant called 4 witnesses. At the end of the hearing that day, the Council announced that of the seven representations particularised by the Legal Officer, it was satisfied beyond reasonable doubt that particulars (1), (2), (3), (4) and (7) were fraudulently made and that this amounted to professional misconduct. It was ordered that the Appellant's name be removed from the General Register for a period of 3 years.

Appeal

78.The Appellant lodged a notice of appeal, comprising a number of grounds of appeal. One of the grounds was that the proceedings at the inquiry were irregular by reason of the lack of particulars of the charge and the tribunal's refusal to adjourn the inquiry so that he could obtain legal representation.

79.As far as the lack of particulars is concerned, these were of course disciplinary proceedings and not a criminal trial. Therefore the Council was not bound in a strict sense by rules applying to the drafting of charges in criminal cases.

80.However, the charge in this case was an extremely serious one. In giving her advice to the tribunal, the Legal Adviser stated:

"in the present case, the allegations that give rise to the charge will also found serious criminal charges and my advice, therefore, is that, for you to be satisfied whether the charge is made out, is that you must be satisfied beyond reasonable doubt".

Defects in particulars

81.In my view, the more serious the charge, the more precise the Council should have been in setting out the case it intended to make against the defendant doctor. Where, as here, allegations of fraudulent representations are raised, it was not enough to set out the representations alleged to have been made and simply to say that they were fraudulent. Particulars (however brief) should have been given of the falsity alleged, which would have enabled at least the Appellant to focus his mind when he had to cross-examine Dr Koh and give evidence on issues relevant to the charge. In the case of Re a Solicitor [2002] 2 HKLRD 525, Stock JA said at 549:

"the question, at the end of the day, is whether, by the time the proceedings began, and whilst they were in progress, the case against the appellant was defined with sufficient precision to enable him to know what allegations he faced; to make clear that he faced the specific allegation which, ultimately was found proved; and to enable him to defend that allegation".

82.As noted earlier in this judgment, the inquiry was not a reprise of the trial in the civil action. Not only was the Council required to consider the matter independently, and the allegations of fraudulent representation couched differently, documents not produced at the trial were produced before the tribunal.

83.Had the Appellant been legally represented at the hearing of the inquiry, I have no doubt his legal advisers would have asked for particulars to be supplied of the falsity alleged in each of the seven "fraudulent representations" and upon being supplied with the particulars, would have conducted his case in a more methodical manner with focus upon issues relevant to the allegations of falsity and fraud.

84.This however did not happen as the tribunal refused the Appellant's applications for an adjournment to enable him to obtain legal representation through the Medical Protection Society.

Refusal of adjournment for legal representation

85.Of course when the Appellant asked for an adjournment to obtain legal representation, the tribunal had a discretion whether to allow it. But that discretion should have been exercised bearing in mind the Appellant's right to legal representation as enshrined in the statute, taking into account the seriousness of the charge he faced, the difficulties posed by the late supply of defective particulars of the fraudulent representations, the complexities of the case, and the fact that quite early in the hearing, concerns had been expressed by the Legal Adviser and at least one member of the Council about the Appellant's ability to understand the proceedings.

86.The tribunal was aware of the Appellant's right to legal representation but it refused to adjourn the hearing for him to obtain representation, because it thought (1) that the Appellant's chance of getting legal representation was "not guaranteed" and (2) he would not suffer any disadvantage because the Legal Adviser was neutral and could assist the Council and the Appellant in procedural matters.

87.As for there being "no guarantee" that the Appellant could get legal representation (or get it within a reasonable time), with respect to the tribunal, that was not the right test. The right test was surely to balance the inconvenience of an adjournment against the defendant doctor's right to legal representation, a right which had been given to him by statute and which was important to a fair hearing, given the seriousness of the charge he was facing, the vagaries of the particulars supplied at the eleventh-hour and the complexities of the case.

88.It was unfortunate that the Appellant did not earlier search for and produce the letter which was later sent to this court. That letter stated clearly that "if he [Dr Koh] does attend and the inquiry proceeds, the Society would be willing to fund the cost of your legal representation". Since Dr Koh did attend and the inquiry proceeded, the conditions had been met and the Appellant would have been able to obtain legal representation through the Medical Protection Society if he had been given the opportunity to do so by the tribunal.

89.The Appellant was not aware until 10 days before the hearing started that Dr Koh would attend the inquiry. He said (and this was not challenged) that he wrote to the Medical Protection Society the same day, but had not had a response within that period of time. It is true that if the Appellant had acted with more perspicacity, he would have written to the Council at the same time so that it would have had some warning that legal representation was being sought and that some delay might occur. But the Appellant could not have known how long the Medical Protection Society would have taken to respond.

90.In any event, what was important was that a defendant doctor facing a very serious charge was asking for an adjournment for legal representation and the fact that he did not obtain representation earlier was through no fault of his own. He was not asking for an adjournment merely to delay the proceedings - in fact, he was not the one who first raised concerns for his need for legal representation.

91.Although one member of the tribunal said that there was "no guarantee" that Dr Koh would be present on an adjourned hearing, Dr Koh was never asked whether he would be willing to return to Hong Kong for an adjourned hearing, and even if that were not viable within a reasonable period, the possibility of taking evidence from him via video-link was not considered.

92.As for the suggestion that the Legal Adviser could give advice on procedural (or even substantive legal) matters, that would not have been the only assistance that the Appellant could have obtained from his own legal advisers. The defects of the particulars supplied had not been pointed out by the Legal Adviser. Further, the Appellant's own legal representatives would also have been able to cross-examine Dr Koh and adduce the Appellant's own evidence more methodically.

93.There were many examples in the transcript of the Appellant's inadequacies when he cross-examined Dr Koh and gave evidence himself. He was unable to differentiate between asking questions and giving evidence, he was confusing when referring to the documents and he and Dr Koh had to be stopped from arguing with each other during the course of cross-examination. The Appellant did not do better adducing evidence from himself. It got to the point that one member of the tribunal had to suggest that the Appellant ask himself a question and then answer it. Consequently I do not think it mattered that the Appellant did not try to ask for an adjournment again or did not appear with legal representation at the adjourned hearing in June. Dr Koh had already finished his evidence and the Appellant had already given the better part of his evidence at the 2-day hearing in May.

94.I would echo with respect the words of the High Court of Australia in Dietrich v R (109) ALR 385, when Mason CJ and McHugh J said:

"The advantages of representation by counsel are even more clear today than they were in the nineteenth century. It is in the best interests not only of the accused but also of the administration of justice that an accused be so represented, particularly when the offence charged is serious. ...

An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills,

but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the [prosecution].

A judge ... cannot investigate the facts, advise and direct the defence, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional".

95.I would only add in respect of the passages quoted above that in the same way as a judge could not assist a litigant in the way his own counsel could, neither could the Legal Adviser. If it were thought that the presence of the Legal Adviser would be sufficient to ensure a defendant doctor's rights at an inquiry, s.24 of the MRO would not have been enacted. I do not think it necessary to consider rights under Article 35 of the Basic Law.

96.With all due respect to the tribunal (which - as can be seen from the transcript - had a difficult and sometimes frustrating time trying to understand the Appellant's case), it appears, regrettably, that its refusal to adjourn the hearing to enable the Appellant to obtain legal representation through the Medical Protection Society was unfairly prejudicial to his interests in light of the serious charge laid against him, the defects in the particulars of fraudulent representation which were formulated only at the commencement of the hearing, the complexities of the case and the Appellant's apparent inadequacies in conducting the case himself. I have to say that in view of the lack of representation in those circumstances, this court cannot be persuaded that the Appellant has had a fair hearing and I would allow the appeal and quash the finding and order, and propose that if the Council were to proceed, new charges be laid and the inquiry be re-heard by a tribunal differently constituted.

97.I would also give an order nisi that the costs of the appeal be to the Appellant.

Burrell, J.:

98.I agree with both Cheung JA and Yuen JA and have nothing to add.

Hon Cheung JA:

99.Accordingly the appeal is allowed. The decision of the Council is quashed and the case is remitted to the Council for another inquiry. In the event that another inquiry is to be held, the Council is required to lay a fresh charge against Dr. Ip and the inquiry is to be heard by a differently constituted tribunal.

100.There shall be an order nisi that the appellant is to have the costs of the appeal.

Representation:

The Appellant, in person, present

Mr C S Grossman, SC and Miss Yasmin Mahomed, SGC, instructed by the Department of Justice for the Respondent