Dr. Fung Yee Leung Wilson V the Medical Council of Hong Kong

FAMV No. 79 of 2018

[2019] HKCFA 15

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 79 OF 2018 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 35 OF 2017)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Chan NPJ:

1.At the end of the hearing, we dismissed the application for leave to appeal.  These are the reasons for our refusal to grant leave.

2.The Applicant was a registered medical practitioner and a specialist in paediatrics.  On 31 December 2010, Madam Cheung took her son (“the Patient”), who was then only 10 months old, to consult the Applicant on what was, according to her, a coughing condition and skin rash.  She brought him to see the Applicant again on 3 and 5 January 2011.  On each of the 3 occasions, the Applicant prescribed various medications containing steroids.  The Patient’s condition did not improve and on the following day, Madam Cheung took him to see another paediatric specialist who after examination, found the Patient to be well and prescribed the usual medications for treating cold or influenza.  Madam Cheung later lodged a complaint against the Applicant with the Medical Council.

3.The Medical Council laid 9 charges against the Applicant: 7 for inappropriately and without proper justification prescribing steroids or steroids related medications for the Patient, one for failing to explain to Madam Cheung on the use of these medications and one for failing to closely monitor or advise Madam Cheung in relation to the nebulization therapy of one of the medications.

4.Before the Disciplinary Inquiry Panel of the Medical Council (“the Medical Council”), the Applicant’s case (as set out in his statement submitted to the Preliminary Inquiry Committee and his medical report and as presented at the Inquiry) was that as from the 2^nd consultation, he had diagnosed that the Patient was at that time suffering from severe acute bronchiolitis with atopic tendency and that such condition justified his prescription of steroids.

5.At the Inquiry, the Medical Council heard oral evidence from witnesses including Madam Cheung, the Applicant and medical experts called by the Applicant and the Medical Council and considered the contemporaneous documents including the receipts issued and signed by the Applicant and his own clinical notes and the written statements and submissions.  The Medical Council found the Applicant guilty of 7 of the charges and directed that he be removed for a total of 3 months from the General Register of Medical Practitioners.

6.On appeal to the Court of Appeal, the Applicant challenged most of the findings of fact made by the Medical Council but his main submissions were that the Medical Council had failed to make a finding on a key issue, namely, whether the Applicant had diagnosed acute bronchiolitis, had adopted an erroneous approach to the evidence and had “made a quantum leap” in arriving at the wrong conclusions on the facts.

7.The majority of the Court of Appeal (Cheung CJHC and Yuen JA, Peter Cheung JA dissenting) dismissed his appeal, holding that the Medical Council did not overlook and could not have overlooked the Applicant’s case that he had diagnosed acute bronchiolitis, that the Medical Council had not accepted that case and had explained in several paragraphs in its decision that this was not only unsupported by his own contemporaneous clinical notes but was in fact contradicted by his signed receipts.  The Medical Council was entitled to conclude that that being so, once it was found on the evidence that the Patient was in fact not suffering from acute bronchiolitis, there was no justification for the Applicant to prescribe steroids to a 10 month old child.  Having reviewed the findings criticized by the Applicant, the majority further concluded that there was no good reason to doubt the Medical Council’s decision as a professional tribunal of fact.

8.Having failed to obtain leave to appeal before the Court of Appeal, the Applicant renews his application before this Committee relying basically on the same grounds.  There are 3 sets of questions of law said to be of great general or public importance for the consideration of the Court of Final Appeal.  For each set of questions, there is a general question of law followed by several sub-questions.  An examination of these general questions and sub-questions clearly shows that they are really aimed at challenging yet again the findings of fact made by the Medical Council and upheld by the Court of Appeal or seeking to raise new issues which were not raised in the court below.

9.The first general question (Q1) invites the Court of Final Appeal to consider whether the approach of an appellate court with regard to the duty of a tribunal of facts to give adequate reasons for its decision is still good law or whether it requires modification and if so, what modification.  We are not satisfied that this proposed question of law requires further consideration by the Court. The Applicant’s real contention is not what the correct approach is or should be but whether the Court of Appeal had properly applied the relevant approach in this case.

10.First, the Applicant’s main complaint before the Court of Appeal was that the Medical Council had failed to decide whether he had diagnosed acute bronchiolitis.  The Court of Appeal held that reading the Medical Council’s decision as a whole, it was clear that the Medical Council had actually dealt with this issue and given good reasons for rejecting the Applicant’s case that he had made such diagnosis.  It is not reasonably arguable that the majority of the Court of Appeal was wrong on this key issue. 

11.Secondly, it cannot reasonably be disputed that disciplinary tribunals have a duty to give reasons for their decisions and that the adequacy of their reasons must depend on the nature and circumstances of each case. See Dr Wu Hin Ting v Medical Council of Hong Kong [2004] 2 HKC 367, Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279.  What is often in dispute, as in this case, is whether these propositions have been correctly applied.  We note that the majority of the Court of Appeal did not rely on or even refer to these authorities.  In the context of this case, the majority were either correct or not correct in upholding the Medical Council’s decision and this does not involve a consideration of the law.  This general question is just an attempt to invite the Court to examine all the evidence again. 

12.As to the 3 sub-questions, they are all premised on the assertion that the Medical Council had failed to give adequate reasons for their findings.  The various matters identified in the Notice of Motion and argued in the written and oral submissions had been reviewed by the Court of Appeal.  We agree with the majority that the Medical Council had provided adequate reasons for making its findings on these matters and was entitled on the evidence to come to its decision.  The 3 sub-questions are clearly challenges on the facts, are case specific and not questions of law.

13.The purpose of raising the second general question (Q2) is not entirely clear.  The principle in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 was not raised or doubted at the Inquiry or before the Court of Appeal and there was no suggestion that this principle does not apply in determining whether a medical practitioner is guilty of professional misconduct, that is, conduct falling short of the standard required of him.  We do not think that this general question is reasonably arguable or that a consideration by the Court of Final Appeal would serve any useful purpose.

14.The reason for framing this general question (Q2) is apparently to lay the basis for arguing the matters set out in the 5 sub-questions.  This is also objectionable.  The way sub-questions 2(a), (b) and (d) are put seems to criticize the Medical Council for failing to make any finding on what the actual condition of the Patient was and what his symptoms and signs were at the time and that without a finding on these matters, it was impossible and wrong for the Medical Council to determine that the Applicant’s conduct was inappropriate or unreasonable.  Sub-question 2(c) is a similar criticism in relation to the main complaint that the Medical Council had failed to deal with the Applicant’s diagnosis. Sub-question 2(e) is a wrap up question.

15.The Medical Council was tasked to determine whether the charges laid against the Applicant had been proved.  The matters in sub-questions (a) to (d) were not issues raised at the Inquiry, in particular, the issue whether it was possible that the Patient could be suffering from other conditions calling for the use of steroids or whether other diagnoses were open to the Applicant which might justify prescribing steroids.  The Court of Final Appeal is clearly not the forum to canvass these matters if they were not raised at the Inquiry.

16.The third general question (Q3) overlaps somewhat with the first general question (Q1).  It is too vague and general as a question for consideration by the Court of Final Appeal. Sub-questions 3(a) and (b) which are couched in terms of the burden of proof do not get off the ground.  The Medical Council had properly reminded itself of the burden and standard of proof and had not placed any burden on the Applicant to prove anything.  What it had done was to assess and evaluate the Applicant’s evidence in the light of the evidence given by other witnesses and the contemporaneous documents.  This was an exercise which the Medical Council was entitled and in fact, obliged to perform.  Sub-question 3(c) is another way of putting sub-questions 2(a), (b) and (d).  Sub-question 3(d) complains about the Medical Council’s rejection of the Applicant’s evidence.  All of these sub-questions are not questions of law but are case specific.

17.As indicated by Bokhary NPJ in Dr Leung Shu Piu v Medical Council of Hong Kong (2014) 17 HKCFAR 356, 363, the Applicant must state clearly why the matters relied on to seek leave under the question of law limb, having failed to convince the Committee to grant leave under that limb, may nonetheless support leave to appeal under the “or otherwise” limb. Counsel has failed to persuade us that leave should be granted under this limb, apart from repeating the submission that there were fundamental flaws in the Medical Council’s reasoning and fact findings such that this is a suitable case for leave.  We do not think the Court of Final Appeal should be invited to examine a second (or third) time all the evidence, findings of fact and the reasons for these findings.  Leave to appeal on the “or otherwise” ground is also refused.

18.For the above reasons, we ordered that the leave application be dismissed.

19.At the conclusion of the hearing but before we announced the dismissal of the application, we were informed that the Applicant had withdrawn instructions to his Counsel.  As a result, we did not hear any submission on the question of costs.  We now make an order nisi that the costs of this application be paid by the Applicant to the Medical Council and direct that such order be made absolute unless the Applicant serve on the Medical Council and lodge with the Registrar within 21 days of the handing down of this determination any written submission as to why this order should not be made absolute and the Medical Council shall have 7 days thereafter to file a reply thereto.

Mr Ambrose Ho SC, Mr Jenkin Suen and Ms Candy Chan, instructed by Haldanes, for the Applicant

Mr Stewart Wong SC and Mr Wilson Leung, instructed by the Department of Justice, for the Respondent