Dr Chan Yee Shing v. The Medical Council of Hong Kong

CACV 155/2018

[2019] HKCA 1330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 155 OF 2018

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL MADE ON 16 APRIL 2018)

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

Date of Hearing :  8 November 2018

Date of Judgment :  27 November 2019

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This was an appeal by Dr Chan Yee Shing against the decision of the Medical Council of Hong Kong dated 16 April 2018 (“the decision”), finding him guilty of misconduct in a professional respect. Dr Chan, who qualified as a doctor in 1978 and has been a specialist in paediatrics since March 1998 had faced three charges arising out of his treatment of a 14 month old boy, Law Yin Pok, for an injury to the child’s right ring finger. The Council found him guilty in relation to the first and third charges, but acquitted him in relation to the second, and imposed a sentence of the removal of his name from the General Register for a period of three months for each of the two charges for which he was found guilty, such sentences to run consecutively.

2.By his amended Notice of Appeal filed on 1 November 2018, Dr Chan challenged both his conviction on those charges, and the sentence imposed.

3.We heard the appeal on 8 November 2018.  At the hearing, Dr Chan was represented by Mr Russell Coleman SC, while the Council was represented by Mr Derek Chan SC and Mr Peter Chiu.  At the end of the hearing, we reserved our judgment, which we now give, with apologies for the delay in doing so.

Background

4.The factual background to the appeal can be summarised as follows:

(1)  On 10 August 2009, the child suffered a laceration to his right ring finger when it was caught in a small hole of an iron gate when he was in a push-chair being pushed by his mother.  As the wound was bleeding, the mother took the child to the Accident & Emergency Department of the Prince of Wales Hospital, where the attending doctor suggested that the wound required to be stitched, under general anaesthesia, by a paediatric orthopaedic surgeon.  The child’s father was contacted, and he telephoned Dr Chan, who was the child’s regular paediatrician.  Dr Chan expressed the view that the wound could be treated without the need for general anaesthesia, and as a result arrangements were made for the child to be discharged from the Prince of Wales Hospital and transferred to the Baptist Hospital, where he would be under the care of Dr Chan.

(2)  Dr Chan saw the child the same evening.  An x-ray done at his order did not reveal any fracture or dislocation.  He advised that the laceration, which was on the palmar side of the middle phalanx of the right ring finger, could be treated either by stitching with needle and thread under general anaesthesia, or by bonding with an adhesive glue without the need for anaesthesia.  The parents opted for the latter course of action, and Dr Chan performed wound apposition using Dermabond, an adhesive glue.  Following the apposition, Dr Chan dressed the wound with a number of layers of dressing, namely Jelonet (a paraffin gauze dressing), plain gauze and Coban (a crepe bandage, which attaches to itself). Dr Chan said that he used 1-inch wide Coban, which he referred to as “paediatric size Coban”.  The fingertip was left exposed, allowing for blood circulation to the fingertip to be observed.

(3)  The child remained in the Baptist Hospital until he was discharged on 13 August 2009.  Dr Chan attended on him each morning up to and including the day of his discharge (i.e. on 11, 12 and 13 August 2009).  On each occasion that Dr Chan attended on the child, Dr Chan changed the dressing, removing the old dressing, and putting on a new one in the same way as described above.

(4)  While the child was in the Baptist Hospital, his heart rate and respiration rate were monitored by the nurses, as was the blood circulation to the tip of the injured finger.  All of these matters are recorded in the nursing records.  There was some dispute as to whether the monitoring of the blood circulation was on Dr Chan’s express instructions to the nurses.  Although it was not entirely clear from the nursing records whether such an instruction had been given by Dr Chan himself, it did appear that he had given instructions varying the frequency of such observation during the course of the child’s stay.

(5)  Following the child’s discharge from the Baptist Hospital, he was brought to Dr Chan’s clinic for a series of follow up visits.  The first visit was on 15 August 2009.  On this occasion, the Coban and plain gauze were removed, and the wound was examined through the Jelonet dressing, Hirudoid cream was applied to the base of the finger, and the wound was then re-wrapped with plain gauze and Coban.  Dr Chan says that Micropore surgical tape was also applied to keep the dressing in place.  The second visit was on 18 August 2009.  On this occasion, the dressing was not removed, and no change in the condition of the finger was noted.  The third visit was on 21 August 2009.  The nurse at the clinic did not notice any change in the dressing, or to the finger.  However, when the dressing was removed for examination of the finger, Dr Chan found the fingertip to be dark grey in colour, indicating ischaemia through lack of adequate blood supply.  Dr Chan took the child to see an orthopaedic specialist in a nearby clinic, who confirmed that the finger was ischaemic.  The child was then taken to the Queen Elizabeth Hospital and was admitted to the orthopaedic ward.  Unfortunately, the condition of the finger did not improve, and it had to be amputated at the middle phalanx on 30 September 2009.

(6)  During the period when the child was attending at Dr Chan’s clinic for follow up visits, two sets of photographs were taken, on 16 August 2009 (between the first and second follow up visits) and 21 August 2009, shortly before the third visit.  These showed the child’s right ring finger fully covered in Coban, so that the whole finger was wrapped up and the tip was not exposed, and could not be seen or observed. Who dressed the finger in this way was a matter of serious dispute at the hearing before the Medical Council.  We shall return to this issue, which is of central importance to the first charge on which Dr Chan was found guilty, when discussing the appeal in relation to that charge.

(7)  It is also necessary to note that when the child was discharged from the Baptist Hospital, Dr Chan filled out an insurance claim form in which he described what he had done by way of appostion and fixing of the wound with adhesive glue as “suturing”.  This formed the underlying basis of the second charge brought against Dr Chan, of which he was acquitted by the Council.  Further, in a handwritten fee note issued by Dr Chan in respect of his services while the child was in the Baptist Hospital, there appeared to have been an alteration made to the fee note, so that whereas it originally read “Suturing of laceration of finger ® ring with resuturing with Dermabond on wound”, the last three words were obscured by the words “another laceration” written on top of them.  This formed the basis of the third charge, on which Dr Chan was also convicted by the Council.

5.Following these events, two civil actions for negligence were brought against Dr Chan.  The first was brought by the child’s mother on behalf of the child, while the second was brought by the child’s parents on their own behalves.  In both cases, it appears that Dr Chan did not dispute liability for negligence, but disputed the quantum of the losses claimed.

The proceedings below

6.Following a complaint to the Council by the parents of the child, after preliminary investigation, Dr Chan was charged with three charges, as follows:

“That he, being a registered medical practitioner, disregarded his professional responsibility to his patient [the child], in that:

(a) between 10 August 2009 and 20 August 2009, he failed to adequately and/or properly manage [the child’s] wound condition;

(b) he claimed to have performed suturing to [the child] on 10 August 2009 in the FirstCare – Hospitalisation & Surgical and Dental Claim Form dated 13 August 2009 but in fact no suturing had been performed by him; and

(c) he misrepresented in the fee note dated 13 August 2009 (entitled ‘DOCTOR’S PROFESSIONAL FEE’) about re-suturing with another laceration found on 12 August 2009 in that there was no re-suturing on 12 August 2009 and/or there was no another laceration found on 12 August 2009.

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

7.The hearing before the Council took place over 10 days, between 22 September 2017 and 15 April 2018.  The Council rendered its decision the following day, 16 April 2018.

8.So far as the first charge was concerned, the main issue revolved around how the wound was dressed after the child was discharged from the Baptist hospital. Both sides’ experts (and Dr Chan himself) agreed that it was necessary for the dressing not to be put on too tightly, so as to allow for proper blood circulation to the fingertip, and that the fingertip should be left exposed so that circulation could be readily monitored and the condition of the fingertip observed.  This was described as standard and basic practice.  It was common ground that a dressing that completely covered the finger would not be proper, as it would not permit such monitoring, so that it would not be possible to assess whether the dressing had been applied too tightly.

9.The child’s mother had initially suggested that the injured finger was completely wrapped and covered with Coban (in the manner depicted by the 16 and 21 August 2009 photographs) on discharge from the Baptist Hospital on 13 August 2009, but subsequently amended her evidence to suggest that it was so wrapped by Dr Chan either on 13 August 2009 or at the first follow up visit in his clinic on 15 August 2009.  Dr Chan, however, denied having dressed the wound in such a fashion, and maintained that he had dressed the wound on 15 August 2009 in the same fashion as he had done in the hospital from 10 to 13 August 2009.  In submissions on his behalf, it was pointed out that it was highly unlikely that Dr Chan, having properly dressed the wound during the child’s stay in hospital would thereafter have dressed it in a different (and incorrect) manner.

10.There was also evidence from Dr Chan and his nurses to the effect that they did not normally keep Coban in the clinic, and had never stocked or used 2-inch Coban.  Their evidence was that the only available Coban was the left-over 1-inch Coban (one partially used roll and one unused roll) which had been purchased from the hospital while the child was hospitalised, which had been taken away on discharge.

11.Dr Chan suggested that someone else, perhaps the parents or other carers of the child, must have subsequently added a layer of 2-inch Coban over the dressing which he had put on in his clinic, removing and replacing it before and after the clinic visit on 18 August 2009, and removing it again before attending at the clinic on 21 August 2009.

12.In relation to the need to observe blood circulation to the fingertip, the nursing records during the period of hospitalisation indicate that circulation was monitored.  While it is not altogether clear whether this was on Dr Chan’s express instruction, it does appear that Dr Chan was aware of the fact of such monitoring, and at least gave instructions to vary the frequency thereof. The fact of such monitoring, and the instructions as to the frequency required, were recorded in the nursing records.  As to the period after discharge, Dr Chan stated that he had told the parents to monitor the blood circulation, notwithstanding that no such instruction was recorded in his notes made during the consultations.  He also said that he told them not to tamper with his dressing.  The Council does not appear to have accepted that he told the parents of the need to monitor circulation (paragraph 35 of their decision), relying primarily on the lack of a written record of such an instruction in Dr Chan’s notes, noting that there was (by contrast) a written record of an instruction to keep the dressing clean and dry, and to avoid contact with water.

The Council’s decision

13.It is apparent from the decision that the Council rejected Dr Chan’s case that the parents or some other person had added the 2-inch Coban on top of the dressing that he put on. It follows that they considered that Dr Chan had dressed the finger in the way in which it appeared in the photographs, with the use of 2-inch Coban so as to completely cover the fingertip.  From this, it followed that Dr Chan could not have properly monitored the circulation at the fingertip on 18 August 2009, when he stated that the dressing was left undisturbed.  The Council’s reasoning was set out at paragraphs 41-43 of its decision, and consisted of the following strands:

(1)  While the parents might have applied an extra layer of dressing in the belief that this would help to keep the wound clean and dry by providing an extra layer of protection, there was no reason for them to have removed the dressing before the subsequent visits to Dr Chan’s clinic on 18 and 21 August, particularly as they had a good relationship with Dr Chan and would have no reason to think that their putting on the additional layer of 2-inch Coban would cause him to become upset.  Further, if Dr Chan had told them to monitor circulation, they would have been unlikely to have wrapped the finger completely as this would have made such monitoring difficult.

(2)  Even if someone else (and not Dr Chan) had applied the additional layer of 2-inch Coban so as to cover the entire finger and removed it before attending at the clinic, this would have disturbed or loosened Dr Chan’s dressing underneath.  However, the evidence of Ms Yip, one of the assistants at the clinic, did not indicate that the dressing had been disturbed when she cut away the Micropore on 21 August 2009.

(3)  Even if the dressing had not been disturbed by the additional and removal of extra 2-inch Coban on two occasions between 15 and 21 August 2009, the dressing put on by Dr Chan on 15 August 2009 (even if done as he had described) could not have allowed for sufficient exposure of the fingertip to enable circulation to be monitored (and must therefore have fallen short of the standard required), as Ms Yip did not notice any gangrenous change when cutting the Micropore on 21 August 2009.

14.On this basis, the Council convicted Dr Chan of the first charge.

15.As to the second charge, the Council accepted (paragraphs 45-49 of the decision) that while the use of the term suturing to describe the apposition of a wound with Dermabond was lax and careless, this did not amount to misconduct in a professional respect.  It therefore acquitted Dr Chan of this charge.

16.Finally, on the third charge, the Council noted that forensic evidence (introduced by Dr Chan and not disputed by him) indicated that the words “another laceration” were probably written over the words “Dermabond on wound” (and not the other way around, with “Dermabond on wound” being written over “another laceration”, as Dr Chan had originally believed).  It went on to conclude that as the original wording of “Dermabond on wound” was correct, and the revised wording of “another laceration” was incorrect, particularly as there was all along only one wound, and not two separate lacerations, and the incorrect description had to have been written consciously, it was reasonable to infer that this was done with intent to misrepresent, mislead or confuse as there could be no other reason for doing so.  The Council went on to state that it was unnecessary to identify who it was that Dr Chan had intended to mislead or confuse, and made no finding as to this, thinking that this was not necessary to make good the charge (which did not identify a particular misrepresentee).

17.On this basis, Dr Chan was convicted of the third charge.

18.As we have noted, Dr Chan was sentenced to the removal of his name from the General Register for a period of 3 months on each charge, with the two periods of removal to run consecutively.

The arguments on appeal

19.Mr Coleman submitted that both convictions were fundamentally flawed, and should not be sustained.

20.In respect of the first charge, he contended that:

(1)  The Council had failed to consider or to deal with the fact (accepted by the Council) that Dr Chan had from the outset dressed the wound properly, using 1-inch Coban, with sufficient exposure of the fingertip to allow for circulation to be assessed, throughout the period that the child was in the Baptist Hospital, up to and including the date of discharge.  It was therefore inherently improbable that Dr Chan would have dressed the wound differently thereafter.

(2)  It was clearly known to Dr Chan that covering the entire finger was inappropriate, as this would not allow monitoring of circulation (the importance of which was known to him, as was evident from his instructions to the hospital nurses to do so).  This was a further reason why it was inherently improbable that he would have dressed the finger in the way depicted by the photographs.

(3)  The note in Dr Chan’s records for 18 August 2009 to the effect “dressing not tight”, was a clear indication that Dr Chan was alive to and had monitored the circulation that day, which could not have been done had the finger been fully covered.

(4)  There were matters which had to be addressed, with reasons given for concluding that such inherent improbability had been overcome by other evidence and/or reasons.  Failing this, the conviction was obviously flawed and unsafe and must be set aside.

(5)  The Council had similarly failed to deal with the clinic nurses’ evidence as to the lack of 2-inch Coban in Dr Chan’s clinic, and their evidence that Dr Chan had not put on the 2-inch Coban, and failed to explain why such evidence should be rejected, or why it should nevertheless be concluded that Dr Chan had dressed the wound in the way shown in the photographs.

(6)  Having correctly accepted that the parents might have added a layer of 2-inch Coban to try to keep the wound clean and dry, the Council disregarded this on the basis of what it thought was an inherent improbability in their having done so, on the supposition that there was no reason for them to have removed what they had added prior to seeing Dr Chan on two occasions having regard to their good relationship with him.  However, having regard to Dr Chan’s instructions not to disturb or interfere with the dressing and the wound, there was in fact reason for them to think that he might be unhappy with their having wrapped over his dressing.

(7)  As to the Council’s view that had Dr Chan instructed the parents to observe blood circulation to the fingertip, they would not have been likely to put on 2-inch Coban so as to make it impossible to do so, this was inconsistent with its finding that he had not given any such instruction (on the basis of there being no record of it in his notes).

(8)  In relation to the second reason given by the Council, that had the additional layer of 2-inch Coban been put on and removed twice, it would necessarily have disturbed the dressing by Dr Chan, the Council did not refer to the evidence of Dr Wu (Dr Chan’s expert witness) that this was not necessarily the case, still less did it explain why it rejected such evidence (assuming that it had adverted to it).

(9)  Even if there were no record of Dr Chan’s dressing being loosened or disturbed, this was not sufficient (when considered against the rest of the evidence) to justify a conclusion that Dr Chan must have put on the 2-inch Coban as part of his dressing on 15 August 2009.

(10)  As to the third reason, which involved an alternative finding that even if Dr Chan had not put on the 2-inch Coban, he must not have dressed the wound properly so as to allow for proper monitoring and observation, there was no satisfactory basis for such a conclusion simply on the basis that Ms Yip did not notice any gangrenous change, and it was in any event, not the basis for the sentence on this charge.

(11)  Further, there were numerous other matters which had been raised in Dr Chan’s defence which were not dealt with by the Council, including the unreliability of the mother’s evidence, the failure of the father to testify, the evident hostility of the parent’ towards Dr Chan, their grossly inflated claims in the civil proceedings, and the unfavourable views as to their credibility expressed by the court dealing with those proceedings.

(12)   Finally, there was a complaint that it was unfair to have amended the charge to change the dates in respect of which complaint was made from 14 to 21 August 2009 to 10 to 21  August 2009, as this had the effect of permitting other complaints and criticisms of Dr Chan (not dealt with by the Council) to be raised by the Secretary and his legal adviser.

21.In response, Mr Chan submitted that this was essentially an attempt to overturn a factual finding of misconduct, based on the Council’s assessment of the credibility of Dr Chan (and the other witnesses) and was a matter on which the court should be slow to differ from the Council.  He also submitted that the court should be slow to conclude that the Council had overlooked or forgotten about relevant evidence, simply because it was not mentioned in its reasons for decision.  He suggested that:

(1)  In relation to the alleged inherent unlikelihood of Dr Chan changing his method of dressing the wound, although not specifically mentioned in the decision, this had been drawn to the Council’s attention and it was improbable that the point could have been forgotten or overlooked.  In any case, it was the case for the Secretary that the nurses at the hospital were sufficiently experienced to manage the wound without orders from Dr Chan, and the dressing only went wrong after discharge, when Dr Chan no longer had the assistance of the hospital nurses.

(2)  The Council was right to think that there was no reason why the parents would, if they were the ones who had put on the additional layer of 2-inch Coban, have felt the need to hide this from Dr Chan.  It was also entitled to conclude that the repeated application and removal of 2-inch Coban would be likely to have disturbed the underlying dressing, which did not happen.

(3)  The Council was right to think that Dr Chan had not expressly ordered the hospital nurses to observe circulation.  The nursing records did not contain any record of such an instruction.  At most there was an instruction to vary the frequency of observation.

(4)  The note in the clinic records of 18 August 2009 that “bandage not tight” was inconclusive as to how the wound had been dressed.  It could just as well have referred to a dressing with 2-inch Coban covering the fingertip.  Moreover, if circulation had been checked, there was no reason why this would not have been recorded, so the absence of a record supports the Council’s view that no proper observation was carried out.

(5)  The other matters were matters raised in the submissions on behalf of Dr Chan, and none of them, singly or cumulatively, were so significant as to justify interfering with the decision.

22.As to the third charge, Mr Coleman’s main argument was that as the Secretary had prosecuted the charge on the basis that the alteration was made with the intention to mislead or deceive the insurers, it was necessary for the Council to come to a view as to this, and not simply sidestep the issue as it had done by saying that it was not necessary to find that any particular person was intended to be, or had been, deceived.  By taking this course, Mr Coleman submitted, the Council was able to avoid having to address the serious difficulties facing the case that the intention was to deceive the insurers, such as the lack of evidence as to whether the fee note was ever sent to the insurers, whether the insurers were concerned or complained about the fee note, the internal ambiguity in the fee note as altered, which did not read sensibly since there would not have been “re-suturing” of “another laceration” but either re-suturing of the original laceration or suturing of another laceration, and the lack of evidence of whether there would have been any difference in the treatment of the claim by the insurers had the original wording stood (assuming, that the fee note was ever submitted to them).

23.Mr Coleman also submitted that the Council had failed to address Dr Chan’s case that this was simply a mistake on his part, and that as he had made a single charge for HK$3,000 for the application and re-application of Dermabond, there was no financial benefit to him by making the change to the wording.  Nor had it turned its mind to the fact that it was Dr Chan who had asked for the forensic analysis, which was not something he would have done if it had been his intention to mislead or confuse anyone.

24.Finally, Mr Coleman complained that there appeared to have been no recognition by the Council of the seriousness of the charge, which was one involving dishonesty, and therefore called for commensurately cogent evidence, particularly having regard to the small amount involved.

25.Mr Chan responded that it was not necessary to prove motive as an element of the charge, and that the charge as framed did not require proof that any particular person was intended to be deceived.  He also submitted that the nature of the document was such that it was inherently likely to be submitted to the insurers, and the absence of good reason for the change that was made was of itself solid evidence of an intention to mislead.

26.Finally, Mr Coleman submitted that the question of penalty should be reconsidered in the event that either of the convictions were set aside.

Discussion

27.Dealing first with the first charge, we are satisfied that the conviction of Dr Chan is unsafe and unsatisfactory and must be set aside.  While we accept that the court will afford a wide margin of deference to the professional expertise of the Council in respect of matters involving professional judgment, or where their expertise will bear on the findings made, we are satisfied that such deference is not called for where the issues at hand do not involve such matters.

28.In the present case, we consider that the first two complaints made by Mr Coleman, relating to the failure to deal with the inherent improbability of Dr Chan applying the dressing differently after discharge from hospital, and the failure to deal with the evidence as to the lack of 2-inch Coban at Dr Chan’s clinic, are matters that do not go to matters in which the professional judgment or expertise of the Council places it in a better position than the court to come to a view.  The issue is one of whether or not cogent evidence in favour of the doctor has been addressed at all, not whether the reasons given for rejecting it should be upheld.  As Mr Chan fairly accepted, the decision does not refer to either of these matters.  Although Mr Chan put forward some suggestions as to why the Council might have thought that these matters were not such as to prevent a finding that Dr Chan was responsible for dressing the wound with 2-inch Coban without exposing the fingertip (rather than this having been done by the parents), this does not assist him, since the matter was not (on the face of the decision) considered or addressed by the Council.

29.The point relating to the inherent improbability of a change in the manner of the dressing is, to our mind, a very strong point in Dr Chan’s favour.  It must be remembered that (as the Council found), the dressing of the wound while the child was in the Baptist Hospital was done by Dr Chan himself.  That being the case, there is little reason to think that he would not be capable of applying proper dressings after the child had been discharged.  As things stand, it is impossible to tell whether or not the Council considered this point at all, and even if they did, how they thought it was overcome by other evidence against Dr Chan.

30.Although we would accept that the court will not readily assume that the Council has forgotten or overlooked matters, it seems to us that the importance of this point is such that the absence of reference to it in the decision leaves us with little alternative but to conclude that this was the case here.

31.In our view, the same difficulty arises in relation to the failure to address the evidence to the effect that Dr Chan did not have 2-inch Coban in his clinic.

32.With respect to the Council, the focus on the likelihood or otherwise of the parents having applied the 2-inch Coban appears to have distracted them from dealing with these important aspects of Dr Chan’s case.

33.In our view, both of these complaints are sufficient, on their own or together, to render the finding that Dr Chan was responsible for the improper dressing of the wound as depicted in the 16 and 21 August 2009 photographs, unsafe and unsatisfactory.

34.Further, there is force in the further complaints that insofar as the Council appears to have thought that Dr Chan might not have been alive to the need to monitor circulation, this was not justified having regard to his direction to vary the frequency of monitoring of the circulation while the child was hospitalised. Regardless of whether the initial order to do so came from Dr Chan (as to which the evidence is inconclusive), it seems clear from the fact that he asked for the frequency of monitoring to be changed that he was well aware of the need to do so.  As Mr Coleman submitted, this is a further reason why it was unlikely that Dr Chan would have dressed the wound in the improper way alleged.

35.As to the apparent alternative reasoning of the Council that even if Dr Chan had not put on the 2-inch Coban so as to cover the finger completely, he could not have dressed it properly so as to enable circulation to be monitored, we do not think that this conclusion can stand on the basis only of the apparent failure of Ms Yip to notice any gangrenous change, when set against the unlikelihood of Dr Chan having made such an error when he had dressed the finger properly several time previously while the child was hospitalised, as we have pointed out above.

36.As to the reasons for the Council’s conclusion that it was unlikely that the parents would have added to Dr Chan’s dressing, we consider that there is force in Mr Coleman’s criticisms of the Council’s reasoning, and that this provides further reason to differ from the Council.

37.As for the complaints relating to the quality of the mother’s evidence, the absence of evidence from the father, and their stance in the civil proceedings, we do not consider that these matters would have justified us in differing from the Council.  Nor would the point relating to the amendment of this charge.

38.However, for the reasons we have given above, we are satisfied that the conviction of Dr Chan on the first charge must be set aside.

39.As to the third charge, we are also of the view that the conviction on this charge should be set aside.  This charge does not raise matters of medical expertise, and as such, there is little reason for the court to defer to the Council.  In our view, the failure on the part of the Council to deal with the case as advanced by the Secretary, of an intentional alteration aimed at misleading or deceiving the insurers, cannot be overlooked.  Given that this was the basis on which the charge was prosecuted, it was, we think, necessary for the Council to grapple with it.  Had it done so, it would have had to consider Dr Chan’s explanation of the error as a mistake on his part, without any intention to deceive the insurers (or anyone else).  Instead, the Council simply took the view that as the change was not inadvertent, it was reasonable for it to infer that it was intended to mislead.  With respect, this did not follow.  Even though the change was not inadvertent (and Dr Chan did not suggest that it was made through inadvertence), the question of whether it was intended to mislead was still one that needed to be addressed, and in addressing it, the identity of the person intended to be misled, and the reasons why Dr Chan might have wished to mislead that person, were matters of considerable importance.

40.Had the Council approached the matter in this way, as we think they were required to do, it would have been necessary for them to deal with the absence of evidence that the fee note in question was submitted to the insurers (other documents submitted to the insurers were stamped by them, but the fee note was not). It would also have been necessary for them to deal with the evidence from Dr Chan to the effect that he had no reason to seek to mislead them, as his charge was a composite charge for the treatment while the child was in hospital.  This, however, was never done.

41.In these circumstances, it seems to us that the conviction of Dr Chan on the third charge is also unsafe and unsatisfactory and that it should also be set aside.

Disposition and costs

42.For the foregoing reasons, we would set aside the convictions of Dr Chan on both charges.  Having regard to the length of time that has elapsed since the incident in question, we do not think that it would be appropriate to remit the matter back to the Council for a further trial, and we shall simply set aside the orders made by the Council in respect of those charges.

43.So far as costs are concerned, as Dr Chan has been wholly successful in his appeal, we make an order nisi that he should have his costs of this appeal, to be taxed on the party and party basis if not agreed.

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

Mr Derek Chan SC and Mr Peter Chiu, instructed by Department of Justice, for the respondent