Dr. Wong Cheuk Yi v. The Medical Council of Hong Kong

CACV 206/2018

[2019] HKCA 1332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 206 OF 2018

(ON APPEAL FROM THE ORDER OF THE MEDICAL

COUNCIL MADE ON 9 MAY 2018)

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Before:  Hon Chu JA, Barma JA and L Chan J in Court

Date of hearing:  11 December 2018

Date of Judgment:  27 November 2019

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J U D G M E N T

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Hon Chu giving the judgment of the Court of Appeal:

1.This is the appeal of the appellant (“Dr Wong”) against the order of the Medical Council (“the Council”) made on 9 May 2018 that he be removed from the General Register for a period of six months consequent upon finding him guilty of two disciplinary charges.

A.  The facts

2.The relevant facts, as set out in the Statement of Agreed Facts dated 8 May 2018 and the Council’s decision dated 9 May 2018, are not controversial, and can be summarized as below.

3.Mr Wang Keng Kao (“the Patient”), a 73 years old patient suffering from cancer of hypopharynx, underwent pharnygolaryngectomy surgery at Queen Elizabeth Hospital (“QEH”) on 9 June 2011.  The surgery involved the removal of both his larynx and pharynx, as result of which he could no longer breathe through his upper airway.  A permanent tracheostoma was created, as part of the surgery, in the trachea at the centre of his lower neck for future breathing.  The Patient was wholly dependent on this opening to breathe after the surgery.

4.The Patient developed post-operative complications and further suffered a massive stroke leaving him with significant cognitive impairment and right hemiplegia.  On 24 June 2011, he was transferred to Kowloon Hospital (“KH”) for rehabilitation.

5.Between 24 June and 14 November 2011, the Patient had several inter-hospital transfers between QEH and KH due to various clinical reasons.

6.During the initial post-operative period, a tracheostomy tube was inserted at the tracheostoma to maintain a patent airway.  On 28 October 2011 at QEH, when the Patient’s condition became stable and the permanent tracheostoma was well formed, the tracheostomy tube was removed.

7.On 1 November 2011, the Patient was transferred to KH for rehabilitation.  On 7 November 2011, he was transferred back to QEH for treatment due to blockage of the feeding tube.  On the following day, 8 November 2011, he was transferred back to KH for rehabilitation.  On 14 November 2011, the Patient had a cardiac arrest.  Active resuscitation was performed but in vain.  He was certified dead on the same day.

8.An autopsy was performed on the Patient. The autopsy report dated 8 December 2011 reveals that a piece of gauze was found in the tracheal lumen at 4.2 cm below the permanent tracheostoma, extending from the mid-trachea to the left main bronchus.  The gauze was soaked with sputum and had partially occluded the tracheal lumen.  The direct cause of death was upper airway obstruction by foreign body.

9.The investigation carried out by the Hospital Authority (“HA”) showed, and it is common ground, that the nurses who took care of the Patient at KH had mistaken the permanent tracheostoma to be a temporary tracheostoma, and wrongly managed it by covering the tracheostoma with gauzes that were strapped on either two or four sides with medical adhesive tapes. The gauzes used to cover the tracheostoma were either 4-ply, or 8-ply as a result of the gauze being folded.  On some occasions, two pieces of gauze were being applied to the tracheostoma. 

10.A death inquest in respect of the Patient was held on 25, 28 and 29 January 2013[1]. The transcript of the inquest was not included in the appeal bundle, although it seems it was before the Council.  According to the decision of the Nursing Council on the disciplinary inquiry of the nursing staff of KH (see [11] below), the Coroner found the gauze trapped inside the trachea was the result of an accident, and the Patient came by his death by accident.[2]

11.On 30 May 2016, the Nursing Council found three of the nurses who took care of the Patient during his stay at KH guilty of unprofessional conduct in failing to provide safe and competent nursing care to the Patient by treating the permanent tracheostoma as a temporary tracheostomy wound, and failing to take steps to prevent layers of gauze and medical adhesive tape being put over the permanent tracheostoma in an inappropriate way, thereby causing the blocking of the permanent tracheostoma.[3]

12.Dr Wong was a resident surgeon of QEH.  By November 2011, he had practised in QEH for about six years.  From 25 to 30 June and from 2 to 14 November 2011, he was the duty surgeon assigned to perform daily ward rounds for surgical patients in KH.

13.Dr Wong was the case doctor of the Patient during his stay at KH.  Dr Wong first saw the Patient at KH on 25 June 2011, being the day after the Patient was transferred to KH for rehabilitation. After 30 June and until 2 November 2011, he did not have any involvement with the Patient.  He saw the Patient again on 2 November 2011, the day after the Patient was transferred back to KH when the tracheostomy tube had been removed.  Between 2 and 11 November 2011, Dr Wong had seen the Patient at KH on eight different occasions[4].

14.Dr Wong denied having seen the permanent tracheostoma of the Patient being covered with gauze at any time during the ward rounds.  He sought to explain that it was the usual practice of the nursing staff to remove dressings of wounds from patients before he carried out the ward rounds.  The Council, however, did not accept this explanation, pointing out that the nursing staff would be unlikely to expose the patients’ wounds for an unknown period as they could not have known when exactly Dr Wong would arrive. 

15.Dr Wong admitted that the wrongful management of the nurses revealed itself in the medical records of the nurses and physiotherapist.  Specifically, the Council found the Observation Chart from 2 to 7 November 2011 and the Treatment Sheet from 8 to 14 November 2011 revealed that the permanent tracheostoma of the Patient was frequently, if not continually, dressed or covered by gauze.  Further, the physiotherapist who had the care of the Patient on 9 November 2011 remarked in the Physiotherapy Ward Sheet that the Patient’s “tracheostoma hole [was] covered by gauze”.  Dr Wong also admitted that he failed to notice the wrong management of the nurses from reading these medical records.         

B.  The disciplinary charges

16.Three disciplinary charges were preferred against Dr Wong as follows:

“That during hospitalization of [the Patient] at [KH] from October to November 2011, he, being a registered medical practitioner, failed to discharge his professional responsibility in managing the Patient, who was under his charge of care, in that:

(a) he failed to take proper steps to prevent the permanent tracheostoma of the Patient being treated or managed as a temporary tracheostomy wound;

(b) he failed to take proper steps to ensure no dangerously or improperly putting of layer(s) of gauze and/or medical adhesive tapes over the Patient’s tracheostoma;

(c) he failed to alert or instruct the nursing, medical and/or allied health care staff that:

(i)  the wound was a permanent tracheostoma and not a temporary tracheostomy; and/or

(ii) the term “tracheostomy” in the medical record was improper or misleading in the circumstances where the Patient had been with a tracheostomy tube in the wound.

In relation to the facts alleged, either singularly or cumulatively, he has been guilty of misconduct in a professional respect.”

C.  The Council’s decision on the charges

17.In the hearing before the Council, counsel representing Dr Wong made a submission of no case on charge (c).[5]  The Council accepted the submission in respect of charge (c)(ii) and ruled there was no case to answer. As to charge (c)(i), the Council ruled there was a case to answer.  Dr Wong elected not to give evidence.  In his counsel’s closing submission, it was indicated that Dr Wong accepted the statement of admitted facts supported charge (a) and that it could amount to misconduct.[6]  Effectively, therefore, and the Council had so treated, Dr Wong admitted charge (a).[7]  

18.In respect of charge (a), the Council’s findings are:[8]

“20. In our view, [Dr Wong’s] failure to notice from reading those medical records the repeated wrong management by the nursing staff of the permanent tracheostoma of the Patient was inexcusable. This demonstrated either [Dr Wong] had not read those medical records or he did not read them carefully enough.

21. However that might be, the real point is that as the case doctor of the Patient, [Dr Wong] had the primary responsibility to provide proper medical care to the Patient during the ward rounds. Given the repeated wrong management by the nursing staff of the permanent tracheostoma of the Patient, [Dr Wong] ought to have taken proper steps to prevent it from being treated or managed as a temporary tracheostomy wound again. And yet, nothing was done by [Dr Wong] to prevent this from happening.

22. For these reasons, we are satisfied on the evidence before us that [Dr Wong’s] conduct had fallen below the standards expected of registered medical practitioners in Hong Kong. Accordingly, we find him guilty of disciplinary charge (a).”

19.In respect of charge (b), although the Council did not accept Dr Wong’s explanation for not noticing the Patient’s tracheostoma was covered with layer(s) of gauze and/or medical adhesive tapes[9], it noted that none of the KH nursing staff who took care of the Patient was called to give evidence, and there was no direct evidence to contradict Dr Wong’s case that he did not know that layer(s) of gauze and/or medical adhesive tapes were put over the Patient’s permanent tracheostoma.  The Council was not satisfied that the evidence established that Dr Wong knew or ought to have known about the dangerous or improper way in which gauze and/or medical adhesive tapes were put over the Patient’s tracheostoma.  The Council therefore found him not guilty of charge (b).

20.In respect of charge (c)(i), the Council’s findings are:

“29. [Dr Wong] ought to have known from reading the medical records kept on the Patient that the nursing staff had repeatedly managed the permanent tracheostoma of the Patient as though it were a temporary tracheostomy. Therefore, it was incumbent on [Dr Wong], as the case doctor of the Patient, to alert them of the mistake.

30. Regardless of whether the nursing staff actually knew the differences between a permanent tracheostoma and a temporary tracheostomy, their management of the permanent tracheostoma of the Patient as though it were a temporary tracheostomy was patently wrong.

31. We disagreed with [Dr Wong] that he was entitled to leave it for the nursing staff to exercise their own professional judgment in the circumstances of this case. Given the repeated wrong management by the nursing staff of the permanent tracheostoma of the Patient, [Dr Wong] ought to realize that there was something wrong with their professional judgment. As mentioned above, [Dr Wong], being the case doctor of the Patient, had the primary responsibility to provide proper medical care to the Patient. Accordingly, it was incumbent on [Dr Wong], as the case doctor of the Patient, to alert them that the wound was a permanent tracheostoma and not a temporary tracheostomy. And yet, nothing was done by [Dr Wong].

32.  For these reasons, we are satisfied on the evidence before us that [Dr Wong’s] conduct had fallen below the standards expected of registered medical practitioners in Hong Kong.  Accordingly, we find him guilty of disciplinary charge (c)(i).” 

D.  The Council’s reasons for sentence

21.In mitigation, counsel pointed out that Dr Wong was the sole breadwinner of a young family.  It was urged upon the Council that Dr Wong was a responsible and conscientious surgeon, well liked and respected by fellow doctors, students and patients.  A bundle comprising references and support letters from the doctors of QEH, including the chief of service of the department of surgery, as well as thank you cards from Dr Wong’s students and patients were put before the Council.  The letter from the chief of service made specific reference to Dr Wong’s heavy workload at the material time.  Counsel further submitted that Dr Wong had lowered his guard at the material time because nurses had been trained about the difference between permanent and temporary tracheostoma, and he could not have imagined that the nurses did not perform their duty and could not be relied upon.  The Council was asked to pass a lenient sentence, and to order a suspension if a serious penalty were to be imposed.

22.Having considered the mitigation and the legal adviser’s advice, the Council made a removal order of six months on charges (a) and (c)(i), and refused to suspend it.  The Council gave its reasons for the sentence at [33] to [39] of its decision as follows:

“33. [Dr Wong] has a clear disciplinary record.

34. We bear in mind that the purpose of a disciplinary order is not to punish [Dr Wong] but to protect the public from persons who are unfit to practise medicine and to maintain public confidence in the medical profession by upholding its high standards and good reputation.

35. Until Day 1 of this inquiry, [Dr Wong] never admitted his failure to notice from the medical records the repeated wrong management by the nursing staff of the permanent tracheostoma of the Patient. It was only at the closing submission by his Counsel that we were told [Dr Wong] would admit to the disciplinary charge (a). However that may be, we give him credit for his admission to the disciplinary charge (a) before us today.

36. [Dr Wong] never told us through his Counsel how he could fail to notice from the medical records the repeated wrong management by the nursing staff of the permanent tracheostoma of the Patient. We appreciate that [Dr Wong] had a heavy workload at the material times but we are particularly concerned about [Dr Wong’s] inexcusable failure to notice from the medical records such wrong management over a period of 10 days during which he had seen the Patient on 8 different occasions.

37. We have grave concerns about [Dr Wong’s] lack of insight into his wrongdoings. [Dr Wong] still maintained that he was entitled to rely on the professional judgment of the nursing staff when it was his primary responsibility, as case doctor, to provide proper medical care to the Patient. In our view, [Dr Wong] also failed to reflect on his wrongdoings and this indicated the lack of remorse on his part.

38. Having considered the nature and gravity of the disciplinary charges for which [Dr Wong] was convicted and what we have read and heard in mitigation, we shall make a global order in respect of disciplinary charges (a) and (c)(i) that [Dr Wong’s] name be removed from the General Register for a period of 6 months.

39.  We have considered whether to suspend the operation of the said removal order. For the protection of the public, we need to be satisfied that [Dr Wong] will fully address our concerns.  And yet, we do not find anything throughout the inquiry and in the mitigation plea that warrants a suspension.  We therefore consider it inappropriate to suspend the removal order.”

E.  Grounds of appeal

23.The notice of appeal advanced two grounds of appeal.  They are:

(1)  The Council failed to give credit for and to take into account mitigating factors that justify suspending the removal order, namely,

(a)  There had been a delay of 6½ years from the incident to the decision of the Council, during which Dr Wong had continued to practise and had not been subject of any complaint.  (Grounds 1(1) to (3))

(b)  The incident was a one-off issue.  (Ground 1(4))

(c)  In the circumstances, it was not justified to make the removal order and not to suspend it so as to protect the public from persons who are unfit to practise medicine because of incompetence. (Ground 1(5))

(d)  The Council’s failure to initiate investigation on the complaint until March 2016 and the delay in progressing with the complaint was inconsistent with the Council’s stated concern over protecting members of the public.  (Ground 1(6))  

(e)  The incident received high prolonged media attention, and had been hanging over Dr Wong’s head for a prolonged period. (Grounds 1(7) and (8)) 

(2)  The sentence was manifestly excessive and inconsistent with sentencing in other similar or analogous cases, when in particular the tracheostoma care in question was a shared responsibility between Dr Wong and the nursing staff.  (Ground 2)         

24.In respect of Ground 2, Mr Coleman SC, who appeared for Dr Wong in this appeal, has not put forward any argument to support the contention that the sentence was inconsistent with sentencing in similar or analogous cases.  We take it that this part of Ground 2 is not pursued.

F.    Our reasons for decision

F1.  Annex 1 to the appellant’s skeleton argument

25.Before addressing the grounds of appeal, it is necessary to deal with Annex 1 to the appellant’s skeleton submission. Annex 1 contains several statements made by members of the medical profession and a letter issued by a doctors’ union, expressing disagreements or criticisms over the results of the disciplinary inquiry of Dr Wong.  Mr Ismail, who appeared for the Council, opposed to Annex 1 being admitted and relied upon in this appeal.

26.Mr Coleman quite rightly accepted that no reliance could be placed on Annex 1.  Firstly, these documents are new materials that were not before the Council.  Yet, there is no application to this Court to admit the documents as new evidence in this appeal.  Secondly, as Mr Coleman also acknowledged, even if such an application were made, it was bound to fail as the documents could not have met the requirements laid down in Ladd v Marshall[1954] EWCA Civ 1, [1954] 1 WLR 1489.  Significantly, the bulk of the comments and criticisms expressed in the documents relates to the correctness of the Council’s finding of guilt.  They contended, inter alia, that doctors should not be made liable for wrongs committed by nurses.  The correctness and the impact of the Council’s finding of guilt are not relevant considerations in this appeal since there is no appeal against the finding of guilt in respect of charge (a) (to which Dr Wong had admitted to, albeit at the stage of closing submission) and charge (c)(i).  In our view, Annex 1 should never have been placed before the court.

F2.  Ground 1 - Delay

27.Ground 1 is essentially a complaint that the Council failed to take into account, and did not give credit for, the delay of 6½ years from the incident to the decision of the Council.  Ground 1(6) complained that there was delay in initiating investigation on the complaint until March 2016 and there was further delay in progressing the complaint. Grounds 1(1) to (3) and the written submission said that since the incident, Dr Wong had moved on with his medical practice; not only had he not made further mistake and had received no complaint, but he had also attained significant professional achievements which are demonstrative of his professional competency.  Grounds 1(7) and (8) also made the point that the case has been hanging over Dr Wong for a prolonged period and the high media attention has caused him much anxiety.

28.As Mr Ismail for the Council pointed out, no submission on delay in initiating and progressing the complaint was made in mitigation at the inquiry hearing.  This being the case, it cannot now be said that the Council should have, but had not, considered the issue of delay.  More importantly, the factual foundation for the issue of delay has not been laid. The mere fact that the Council only commenced investigation in March 2016 does not lead to the conclusion that the Council was guilty of delay.  It is, for instance, relevant to note that there was the death inquest in 2013, followed by the disciplinary inquiry against the nurses that took place from November 2015 to May 2016.  Mr Ismail also pointed to Dr Wong’s request for extension of time to reply to the PIC Notice.  There is simply no or no sufficient factual basis to conclude that there was delay on the Council’s part in the handling of the complaint and/or in the prosecution of the disciplinary proceedings.  Given the circumstances, Mr Coleman had to accept that Ground 1(6) was unarguable. 

29.Mr Coleman was further constrained to limit his submission to say that in the lapse of over 6½ years from the incident, Dr Wong had not made any mistake in his professional practice, and he had undergone a prolonged period of anxiety because of high media attention and with the case hanging over his head.  These points had been urged upon the Council by counsel for Dr Wong in mitigation.[10] We have no reason to believe the Council failed to consider them when deliberating on the sentence to be imposed, including whether to suspend the removal order.  However, it is within the purview of the Council to decide on whether to place any, and if so how much, weight on these matters[11].  Grounds 1(1) to (3), (7) and (8) therefore cannot stand.

30.We do not accept the argument that the incident was a one-off issue.  Over a span of ten days from 2 to 11 November 2011, Dr Wong had seen the Patient on eight different occasions.[12]  It was not a single or one-off failure on his part.  In our view, the Council was entitled to regard the repeated failures as serious.  As the Council observed, the failure to notice from the medical records the nurses’ wrongful management of the tracheostoma can only be one of two reasons, namely, he had not read the records, or he did not read them carefully enough.  Either case it was a serious failure.  The gravity was compounded by the fact that there were repeated failures spanning over a period of ten days.  Ground 1(4) has no merit.

31.Given our rejection of Grounds 1(1) to (4), the complaint under Ground 1(5), namely, in light of Grounds 1(1) to (4), the removal order and the refusal to suspend it could not be properly made to protect the public from persons who are unfit to practise medicine because of incompetence, also falls away. 

32.We would further point out that when the Council referred to the need to protect the public from doctors who are unfit to practice because of incompetence,[13] it was making a general statement on the purpose of a disciplinary order.  The Council’s reasons and considerations for making the removal order and not suspending it were set out in [36] to [39] of its decision.[14]  

33.Specifically, the Council considered that: (i) the failure to notice the nurses’ mistakes from the medical records was inexcusable, (ii) the failures were repeated on eight occasions within a span of ten days, (iii) Dr Wong had no insight into his wrongs in that he continued to maintain he was entitled to rely on the professional judgment of the nursing staff when he, being the case doctor, had a primary responsibility for the care of the Patient – a view he appears to maintain as reflected from Ground 2 and the arguments advanced in this appeal, which we will deal with under Ground 2[15], (iv) Dr Wong’s failure to reflect on the matter which is indicative of a lack of remorse on his part, (v) the nature and gravity of the disciplinary charges, and (vi) no proper basis to suspend the removal order had been shown.

34.We note that the grounds of appeal do not complain that the Council had taken into account irrelevant matters.  Indeed, it is open to the Council, as a professional disciplinary body, to come to the views summarized above, having regard to the relevant legal principles discussed in [43] to [47] below and the facts and circumstances of this case. In short, the complaint under Ground 1(5) cannot stand.

35.For the above reasons, Ground 1 fails.

F3. Ground 2 – Shared responsibility

36.Ground 2 complained that the Council failed to take into account that the tracheostoma care in question was at minimum a shared responsibility between Dr Wong and the nursing staff, and not just that of Dr Wong.  Mr Coleman submitted that this was a significant mitigating factor and the Council was wrong to criticize Dr Wong as lacking of insight in maintaining the view that he was entitled to rely on the professional judgment of the nursing staff.   

37.Mr Ismail, on the other hand, pointed out that Dr Wong had the primary responsibility to provide proper medical care to the Patient because he was the case doctor, and the nursing staff had a separate secondary responsibility.  Dr Wong’s primary responsibility was not shared, and this was the basis on which the guilty findings were made.

38.In our view, the “shared responsibility” argument misses the gravamen of the disciplinary charges that Dr Wong were found guilty of.  It is not disputed that Dr Wong was the case doctor of the Patient.  As such, he clearly had the responsibility to provide proper medical care to the Patient.  The disciplinary charges are directed at his failures to discharge his professional responsibility as the Patient’s case doctor.  The guilty finding of charges (a) and (c)(i) is on the basis that he failed to discover the wrong management of the tracheostoma, which was patent from the medical records available to him at the material time.  This is an aspect of his professional responsibility towards the Patient, which cannot be delegated, or shared with the nursing staff.  Thus analyzed, it is clear that there is no room for contending that a shared responsibility existed between Dr Wong and the nursing staff over the management of the Patient’s tracheostoma.  As Mr Ismail highlighted, Dr Wong and the nursing staff had separate responsibilities towards the Patient.  

39.Still less can it be said that Dr Wong was entitled to rely on the professional judgment of the nurses.  While the nursing staff were obliged to exercise professional judgment in dispensing care to the Patient, Dr Wong was also under a duty to read, and read carefully and properly, the medical records of the Patient who was under his care.  His duty in this regard would not be lessened because nurses were professionally trained and were expected, or could generally be relied on, to exercise professional judgment in carrying out their work.  Had Dr Wong not failed to read, or properly read, the medical records of the Patient, he would have discovered the nursing staff’s wrong treatment of the tracheostoma and had it rectified. 

40.It would appear that Dr Wong, in maintaining, and continuing to maintain, the view that he was entitled to rely on the professional judgment of the nursing staff, has failed to appreciate the substance of the disciplinary charges that he was found guilty of, and, in turn, the nature and the gravity of the failure of his responsibility to the Patient.  The Council was, in the circumstances, entitled to form the view that he failed to reflect on, and had no insight into, his wrongs.

41.For the above reasons, Ground 2 fails.     

F4.  Other submissions – Failure to give reasons

42.In his oral submission, Mr Coleman argued emphatically that the Council failed to demonstrate the reasoning process or give reasons for deciding not to suspend the removal order.   Such arguments were outside the scope of the grounds of appeal, and should not be allowed. That aside, we are of the view that this submission has no merit.

43.Mr Coleman relied on Lau Koon Leung v Medical Council of Hong Kong [2006] 3 HKLRD 225 at [68], where Yuen JA pointed out that since the Privy Council decisions in Ghosh v General Medical Council [2001] 1 WLR 1915 and Preiss v General Dental Council [2001] 1 WLR 1926, Hong Kong courts have urged on the disciplinary tribunals to provide reasons for their decisions, see for example Dr Ip Kay Lo v Medical Council of Hong Kong [1999] 1 HKLRD 491 at p.504; Dr Wu Hin Ting v Medical Council of Hong Kong [2004] 2 HKC 367 at [34].  He also placed reliance on the dissenting judgment of Cheung JA in Dr Fung Yee Leung Wilson v The Medical Council of Hong Kong [2018] HKCA 393 at [46.20], which stated that since the decision of the Medical Council is now drafted by the legal adviser, who is legally qualified, a higher standard is expected, and the decision should contain detailed analysis of the contentious issues, such that it is simply not good enough to say that the Medical Council must have considered the arguments even though they had not been mentioned in the decision. 

44.Three points have to be made on these authorities.  First, in Lau Koon Leung,Yuen JA in fact went on to say in [69] and [70] that the courts remain cautious when it comes to appeals from orders of penalties, and referred to Evans v General Medical Council unrep., The Times, 19 November 1984, quoted in Ghosh v General Medical Council at [34], as follows: 

“The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled. It has been said time and again that a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct and that the Board will be very slow to interfere with the exercise of the discretion of such a committee ...

The committee are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence.  The Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards.”

45.Although Evans was a decision that preceded the Privy Council decisions, it was quoted and accepted by the Privy Council in Ghosh, and remains good law. 

46.Second, the comments made by Cheung JA in Dr Fung Yee Leung Wilson at [46.20] was in the context of discussing the Medical Council’s findings of guilt.  In the context of penalties, Mr Coleman has argued that although caution is to be deployed, the court retains a wide jurisdiction to decide whether the penalty is excessive or disproportionate, and the measure of respect accorded is only such as is appropriate in the particular circumstances of the case.  In this regard, however, it is pertinent to note the principles set out in this Court’s judgment in Registrar of the Hong Kong Institute of Certified Public Accountants v Leung Kam Man Victor unrep., CACV 37/2016 at [13] to [15][16] as follows:   

“13. Thus, though the court can examine a penalty imposed by a disciplinary tribunal or committee to see if it is excessive or disproportionate, it would accord an appropriate measure of respect to the judgment of such tribunal or committee.

"14. What does this mean in practice? The court acknowledges that a disciplinary tribunal or committee has to exercise their judgment on penalty by reference to the facts of that particular case, their assessment of the seriousness of the findings and the measures that need to be imposed to reflect the same and to maintain the standard of the profession. In these matters, in particular the latter two aspects, professional judgment and expertise are highly germane. In line with the approach recently confirmed by the Court of Final Appeal in Sin Chung Yin Ronald v The Dental Council of Hong Kong FACV 6 of 2016, 4 November 2016, the court will give due weight to such professional judgment and expertise.

"15. The court further accepts that there could be variations in sanctions imposed by different members of the committee.  It is not at all surprising that committees differently constituted could reasonably take different views on the seriousness of a contravention of a particular rule (especially viewed against different sets of factual background) and on the measures that should be imposed by way of sanctions.  So long as the sanction imposed falls within the reasonable range of options, the court will not intervene.  In short, the disciplinary tribunal or committee has a margin of discretion in deciding the appropriate sanction to maintain the standards of the profession, see Lau Koon Leung v Medical Council of Hong Kong, supra at [75(2)].”

47.Third, in Dr Fung Yee Leung Wilson v Medical Council of Hong Kong [2019] HKCFA 15 at [9] and [11], the Court of Final Appeal refused the appellant’s invitation to review the approach to the duty of the disciplinary tribunal to give adequate reasons for its decision. The Appeal Committee reaffirmed the principles stated in Dr Wu Hin Ting, namely, while disciplinary tribunals have a duty to give reasons, the adequacy of their reasons must depends on the nature and circumstances of each case. 

48.In the present case, we do not accept the Council failed to give reasons, or reveal the reasoning process, for its decision to impose an immediate removal order.  As noted above, the Council had in [36] to [39] of its decision explained the considerations and reasons underlying the making of an immediate removal order.[17]    

49.Mr Coleman argued that there are significant mitigating factors that justified suspending the removal order, and the Council’s reasons for sentence did not appear to have taken them into account.  Apart from the matters raised under Grounds 1 and 2, which we have addressed, Mr Coleman also referred to the personal circumstances of Dr Wong. He posed the question of whether Dr Wong needs to be treated in the way that the Council did, referring at the same time to the letters of support put before the Council in mitigation.  In our view, the answer to the question must lie within the expertise of the Council as a professional disciplinary tribunal.  The key issue in this appeal is whether grounds exist for the court to interfere with the penalty imposed by the Council. 

50.There can be no doubt that Dr Wong is well regarded and respected by his fellow doctors, students and other patients. There is also no doubt that his reputation in the profession and his personal circumstances are relevant factors to be taken into account by the Council. However, when deciding on penalties, the Council not only look at the interests of Dr Wong and the effect and consequences of the penalty on him, but also have to bear in mind their wider duties as a professional disciplinary body, which include ensuring the penalty reflects the gravity of the occasion, maintaining the reputation of the medical profession and preserving the confidence of the public in the profession: see The Queen on the application of Eden v General Medical Council [2008] EWHC 1905 (Admin) at [50].  On these matters, members of the Council are best equipped to decide what is the right penalty to impose, and the court’s interference is only justified if the penalty imposed can be said to be clearly wrong and unwarranted: see David Jon Rodgers v The General Medical Council, unrep., Privy Council Appeal No 46 of 1984, 19 November 1984 at pp 9-10.

51.In summary, this is not a case that the court can say that the removal order and the decision not to suspend it are plainly inappropriate or outside the reasonable ambit of sanctions that the Council could impose such that they warrant the court’s interference.             

Disposition

52.For the reasons given above, we would dismiss the appeal.  Applying the usual order of costs follow event, we order the appellant to pay the respondent the costs of this appeal, to be taxed if not agreed.    

Mr Russell Coleman SC, instructed by Howse Williams Bowers, for the appellant.

Mr Anthony Ismail, instructed by Department of Justice, for the respondent.