Dr Wu Hin Ting, Peter Brendan v. The Medical Council of Hong Kong

Case No.CACV 36/2003

Court

Court of Appeal

Date20 Nov 2003

Judge—

Case Document

100%Judiciary

CACV000036/2003

CACV36/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 36 OF 2003

(On Appeal from the Order of The Medical Council of
Hong Kong made on 15 January 2003 and dated 17 January 2003
and served on 23 January 2003)

_________________________

BETWEEN
	DR WU HIN TING, PETER BRENDAN	Appellant

	AND

	THE MEDICAL COUNCIL OF HONG KONG	Respondent

_________________________

Coram: Hon Ma CJHC, Woo VP & Suffiad J in Court

Date of Hearing: 20 November 2003

Date of Decision: 20 November 2003

Date of Handing Down of Reasons for Decision: 12 February 2004

________________________

REASONS FOR DECISION

________________________

Hon Ma CJHC :

Introduction

1.On 15 January 2003, the Appellant (Dr Peter Brendan Wu Hin Ting) was found guilty in disciplinary proceedings by the Medical Council of Hong Kong ("the Medical Council") of the following charges:-

"He, being a registered medical practitioner, disregarded his professional responsibility to treat or care for his patient Madam Wong Shui King or otherwise neglected his professional duty in that in the period between August 1992 and November 1992 he prescribed the patient with medication that contained steroid and,

(a) he failed to inform and to explain to the patient the reason for such medication, its nature and side-effects; and

(b) he failed to keep proper medical record on all the patient's consultations with him and on the prescription of medication that contained steroid.

In relation to the facts alleged, he has been guilty of misconduct in a professional respect."

The charges having been found proved, the Medical Council ordered the Appellant's name to be removed from the General Register for 12 months and that its decision be published in the Hong Kong Government Gazette.

2.It is from that finding of guilt that the Appellant has appealed to this court by a Notice of Appeal dated 20 February 2003. The Notice of Appeal was amended on 17 October 2003 and there was an application to re-amend the day before the hearing of the appeal. I shall return to this application presently.

3.The disciplinary proceedings before the Medical Council arose from the treatment that was given by the Appellant to one Madam Wong Shui King ("Madam Wong") in 1992. She first saw the Appellant on 10 August 1992 complaining of weakness on her right side. In the Appellant's notes of this consultation, reference is made to an incident on 19 June 1992 when Madam Wong suffered weakness of her right leg, loin pain (again on the right side) and nausea. In her testimony to the Medical Council, Madam Wong told of her having been admitted to the Prince of Wales Hospital in late 1991 and over the course of 1992 up to June of that year. She had apparently fainted a number of times. She consulted the Appellant on the recommendation of a friend since the Appellant was a specialist neurophysician and neurosurgeon.

4.That Madam Wong first consulted the Appellant on 10 August 1992 was not in dispute in the disciplinary inquiry. Nor was it in dispute that she told the Appellant of her medical history, showing him an MRI scan. She told him of the lack of movement on the right side. She also mentioned the fact that the doctors at the Prince of Wales Hospital had told her she had a "scar" in the brain. She was examined by the Appellant.

5.What was, however, keenly contested (and this was really the critical issue before the Medical Council) was the medication that Madam Wong says she received from the Appellant. Specifically, according to her, she was prescribed some yellow pentagonal pills. She was told to take these pills three times a day, four each time. Her evidence was also that the Appellant at no stage identified the pills nor informed her of the reason for prescribing them. Nor did he warn her as to the possible side effects of the medication. This part of her evidence was of course crucial to the charge that the Appellant had failed to inform and explain to Madam Wong the reason for the medication, its nature and side effects. It was also relevant to the second charge that the Appellant failed to keep a proper medical record of the prescription of these pills. The Appellant's notes do not refer to the prescription of the yellow pills at all.

6.Madam Wong's evidence was also to the effect that she saw the Appellant fairly regularly, at first weekly, later bi-weekly. This part of her evidence was relevant to the other charge that the Appellant faced, namely, that he had failed to keep proper medical record of Madam Wong's consultations. Here, the Appellant's records only showed that Madam Wong consulted him on three occasions - on 10 August 1992, 19 November 1992 and 30 December 1992.

7.I have already referred to Madam Wong's evidence that initially the dosage of the yellow pills was three times a day, four pills each time. After about a month, according to her, the dosage was reduced by half. No explanation was given as to the reason for this. It appears at a later stage that the dosage may have reverted to the original one.

8.According to Madam Wong, her condition appeared to have improved after first seeing the Appellant. In her examination-in-chief, she said that when she first saw the Appellant she needed a walking stick and someone to accompany her. Later, she dispensed with the walking stick and needed no companion.

9.However, in November 1992, she complained to the Appellant of some pain to her right hip. This complaint was recorded in the Appellant's clinical notes of the consultation on 19 November 1992. X-rays were then taken and also on the 30 December 1992 when there was another consultation. As I have mentioned above, these two consultations (together with the one held on 10 August 1992) were the only ones recorded by the Appellant in his clinical notes.

10.Madam Wong's weight increased over the period from August to November 1992 by about 40 pounds. We have been provided with photographs that show quite dramatically the increase in weight.

11.It was Madam Wong's evidence that she saw the Appellant only up to about February or March 1993. She stopped seeing him because a friend remarked she was very fat and looked bloated. The friend suggested that she consult another doctor. It was not in dispute that in March 1993 she consulted Dr Edmund Woo Kin Wai, a well-known neurologist. She consulted Dr Woo for two reasons: she was too fat and her right hip was causing her considerable pain.

12.When Madam Wong saw Dr Woo, she related to him her medical history and also the fact that she had earlier consulted the Appellant. In his testimony, Dr Woo said he found it striking that she had Cushingnoid features. Characteristics of such features include obesity and a "lemon on a stick" appearance. She says she mentioned to Dr Woo the fact that she had been prescribed yellow pentagonal tablets and described them to him. This part of her evidence was consistent with what Dr Woo said in evidence and also with the evidence with a Madam Sin Yuet Ling (who had accompanied Madam Wong to see Dr Wu). After the reference to the yellow pills, Dr Woo then showed Madam Wong some yellow pentagonal pills that he kept in his surgery. Madam Wong confirmed these pills to be the same as those prescribed by the Appellant.

13.The yellow pentagonal pills were identified as being Dexamethasone, a drug containing steroids. It is this drug that forms the subject matter of the first charge. It was alleged against the Appellant that he had failed to inform or explain to Madam Wong the reason for prescribing Dexamethasone, its nature and side effects. The side effects of Dexamethasone are manifested in the Cushingnoid features earlier described. In Dr Woo's notes, he states, "[Madam Wong] used Dexamethasone - marked Cushingnoid features".

14.I should also mention that on 21 September 1992 and 16 November 1992, Madam Wong consulted a Dr Richard Kay of the Prince of Wales Hospital. Dr Kay's clinical notes record the fact that Madam Wong was seeing a neurosurgeon privately. The notes also revealed the medication that Madam Wong was taking. However, no mention was made of Dexamethasone or yellow pentagonal pills. I shall return to this aspect.

15.In April 1997, Madam Wong commenced personal injury proceedings against the Appellant. Although none of the papers in that action was placed before us (not even the judgment), we were told that Madam Wong was successful in her claim against the Appellant.

16.On 12 June 2001, the Appellant was charged with professional misconduct. I have already set out the charges in paragraph 1 above.

The proceedings before the Medical Council

17.The hearing before the Medical Council lasted 5 days but over a period of some 13 months:- 12 December 2001, 27 March 2002, 29 May 2002, 13 June 2002 and finally 15 January 2003. The disjointed nature of the hearing forms a ground of appeal.

18.At the hearing, the Appellant was represented by leading and junior counsel (Mr Adrian Huggins, SC and Mr K Y Thong). The Medical Council was assisted by a Legal Adviser (Ms Margaret Crabtree). A Legal Officer (Ms Phyllis Wong) presented the case (effectively as the prosecutor) to the Council.

19.The issues for the Medical Council to resolve can simply be stated:-

(1) Had Madam Wong been taking steroids, specifically Dexamethasone?

(2) Did the Appellant prescribe Dexamethasone to Madam Wong or could she have taken it from some other source?

(3) If the Appellant did prescribe Dexamethasone to Madam Wong, did he inform or explain to Madam Wong the reason for prescribing this drug, its nature and side effects?

(4) Did the Appellant fail to keep a proper record of Madam Wong's consultations with him and on the prescription of Dexamethasone?

20.Over the course of the hearing before the Medical Council, evidence on oath was given by Madam Wong, Dr Woo, Dr Kay and the Appellant, among others. Apart from his own testimony, evidence was also given on his behalf by the nurse at his clinic responsible at the relevant time for dispensing drugs to patients and ordering drugs from suppliers (Ms Kong Mei Lin), a director (Ms Poon Kam Shiu) from Christo Pharmaceuticals Ltd which was the supplier of Dexamethasone to the Appellant's clinic and another nurse who worked for the Appellant (Ms Lau Shui Fun).

21.On 15 January 2003, following lengthy and detailed final submissions from the Appellant's counsel, the Medical Council retired to consider its verdict. The Legal Adviser retired with the Council members as well. I shall presently explain the significance of this. After a short adjournment, the Medical Council returned. The Legal Adviser then told the parties that while the Council was in deliberation, she was also present, not to take part in the deliberation, but to be available should any legal questions arise. She explained to the parties that following the decision of the Court of Appeal in Lam Kwok Pun v Dental Council [2000] 4 HKC 181 where Mayo VP observed, obiter, that it was not advisable for a legal adviser to retire with a disciplinary tribunal when it was deliberating, the Medical Council had adopted the following procedure. The legal adviser would if possible provide any legal advice in front of the parties before the Medical Council retired, but when the Council retired, the legal adviser would also retire with the members. If any legal advice was provided to the Council while it was in deliberation, this advice would, in accordance with Regulation 8 of the Medical Registration (Miscellaneous Provisions) Regulation, Cap.161, be disclosed to the parties. In the present case, this was exactly what was done. The Legal Adviser informed the parties of the contents of the advice she had given to the Medical Council while it was deliberating on its decision.

22.After the parties had been informed of the advice, no further submissions were made whereupon the Chairman of the Medical Council announced its decision.

23.In announcing the Council's decision, the Chairman stated the following reasons and findings:-

(1) It was stated that Madam Wong gave evidence that she was a patient of the Appellant between August 1992 and early 1993 and that she had consulted him regularly during that time. It was also recorded that Madam Wong said she was prescribed yellow pentagonal tablets over a period of three months until November 1992 with different dosages. The Appellant did not tell her the reason, nature or side effects of these tablets.

(2) Next, reference was made to the fact that in March 1993, Madam Wong consulted Dr Woo and it was in the course of her consultation with him that Madam Wong identified the yellow pentagonal tablets she had been taking as Dexamethasone.

(3) It was recognized that Madam Wong's evidence differed to that of the Appellant. The Appellant's evidence was that Madam Wong only consulted him three times (as recorded in his clinical notes) and that at no stage had he prescribed Dexamethasone to her. There was no record of the prescription of Dexamethasone in the clinical notes. Reference was also made to the fact that the Appellant's nurses gave evidence, as did Ms Poon from Christo Pharmaceuticals Ltd. I shall be referring to the evidence of these persons in greater detail below.

(4) The Council recognized that the charges against the Appellant could only be substantiated if Madam Wong was accepted to be a reliable witness. However, having heard "all" the evidence and "taking into account all matters that have been urged upon the Council by the defence", the Medical Council was of the view that Madam Wong was a truthful and reliable witness. It was accepted that Madam Wong had been taking steroids and had developed Cushingnoid features. The Medical Council also considered whether Madam Wong could have taken steroids from another source, but concluded to its satisfaction that it was the Appellant who had prescribed Dexamethasone to her.

(5) Accordingly, the Council found the charges against the Appellant proved and that this amounted to misconduct in a professional respect.

24.After being notified of the Appellant's previous record and having heard submissions made in mitigation, after another adjournment, the Medical Council stated it took a "very serious view of the indiscriminate, long-term, use of high-dose systemic steroids" and also stressed the importance of keeping proper medical records. The suspension from practice for 1 year was then announced.

The appeal

25.Before us, the Appellant was represented by Mr Gerard McCoy, SC and Mr Edwin Choy. The Respondent was represented by Mr John Bleach, SC. After hearing submissions from Mr McCoy, we dismissed the appeal with costs with the Reasons for Decision to be handed down at a later date.

26.Before going into detail as to the reasons for dismissing the appeal, I first identify the issues raised by the Appellant, as I understood them:-

(1) At the hearing before the Medical Council, evidence was given not only by the Appellant and Madam Wong but also by other witnesses called by both the Appellant and the Legal Officer. The testimony of the witnesses gave rise to conflicts, some quite divergent, between versions of important events. Clearly, the Medical Council had to choose which version or versions of events were to be preferred. Of particular importance was the testimony of Madam Wong. The Appellant's complaint was that the Medical Council failed adequately to give reasons for its decision to accept Madam Wong's version of events and for making the findings it did. In short, how did the Medical Council reach the findings it did and the reasons it gave (see paragraph 23 above) on the issues before it (see paragraph 19 above)? (Issue 1: Lack of Reasons for Decision).

(2) Connected to the first issue was the Appellant's argument that the evidence in support of Madam Wong's version of events ought not have been accepted and that the Medical Council's findings and conclusions were "out of tune" with the rest of the evidence. By this was meant that Madam Wong's evidence was inherently unreliable and in conflict with the evidence given by the Appellant's witnesses which ought to have been preferred. There was no reason to have rejected the evidence adduced on behalf of the Appellant or in his favour, and the Medical Council gave no reasons for so rejecting. Further, it was contended that if no account was to be taken of the evidence in the Appellant's favour, this meant that the Appellant's medical records were forged and that the Appellant's witnesses must have conspired to pervert the course of justice. This was never put to be the Appellant's witnesses and therefore constituted a serious irregularity. These points were contained in a draft Re-Amended Notice of Appeal, for which the Appellant sought leave to use at the hearing. (Issue 2: Were the findings and conclusions reached by the Medical Council "out of tune" with the evidence?)

(3) As stated above, when Madam Wong consulted Dr Woo, she was shown some yellow, pentagonal pills that were kept in his surgery and Madam Wong identified these pills as the ones prescribed by the Appellant. Further, when she was giving evidence at the hearing before the Medical Council, Madam Wong was shown some yellow pentagonal pills and was asked to identified them as being the pills she had earlier in her testimony described to be those given to her by the Appellant. At the time, the Appellant's counsel objected to this exercise on the basis it was irrelevant and futile. The objection made by the Appellant was that both identifications, but especially the "dock identification" in the disciplinary proceedings, were highly prejudicial to the Appellant and ought not to have been entertained. (Issue 3: The identification of the pills).

(4) There was a serious procedural irregularity in the proceedings before the Medical Council in that, as described in paragraph 17 above, the hearing lasted some five days over the period of 13 months. This, it was submitted, deprived the Appellant of a fair hearing in that members of the Medical Council must have decided critical questions, including the credibility of witnesses, by reference to transcripts rather than their impression of the witnesses themselves. Any nuances in the testimony of the witnesses would therefore have been lost. In short, the point was that this broken series of hearings over the course of over a year must have seriously detracted from a fair and informed consideration of the matters the Medical Council had to determine. All this was exacerbated by the fact that the relevant events took place in 1992, some 10 years before. (Issue 4: Disjointed nature of hearing).

(5) Mr McCoy also submitted there was another serious procedural irregularity in that the Legal Adviser to the Medical Council retired with the members at the conclusion of Counsel's submissions. This was said to be contrary to the observations of Mayo VP in Lam Kwok Pun v Dental Council. (Issue 5: Legal Adviser retiring with the members of the Medical Council).

27.With these arguments, the Appellant sought to set aside the decision of the Medical Council.

The Standard of Proof

28.Before dealing with the issues identified above, I should first dispose of a point that was made both in the Notice of Appeal and in the Appellant's written submissions. It was only towards the conclusion of counsel's arguments that the point was abandoned, but in view of some of the points made in relation to the additional ground sought to be introduced in the Re-Amended Notice of Appeal, I think it worthwhile to deal with this aspect of the appeal.

29.The question as to what is the appropriate standard of proof to apply in disciplinary proceedings is one that frequently arises. Of course, the starting point is to look at the relevant statute but, as in the case of the Medical Registration Ordinance, Cap.161, this is often not spelt out. In the absence of any guidance provided by the relevant statute, the position can briefly be stated as follows:-

(1) The appropriate standard of proof in disciplinary proceedings depends on the charges faced by the person who is the subject of the inquiry. As Litton VP said in Tse Lo Hong v AG [1995] 3 HKC 428, at 440D-E, "The standard of proof must be commensurate with the gravity of the charge".

(2) The fact that the person charged faces serious consequences (whether a fine, suspension or some other form of punishment) is not by itself a factor which determines the standard of proof. All cases before the court are important or have important consequences for the parties before it. The standard of proof does not so much depend on the seriousness of the case or the consequences as on the seriousness of the charge. That said, it is nevertheless often the case that the more serious the charge, the more serious will be the consequences (although this is not invariably so). Accordingly, in disciplinary proceedings where suspension or being struck off are realistic penalties that can be imposed, a tribunal would not be in error in applying a stricter standard of proof than merely a balance of probabilities since the charges faced are likely to be of a more serious nature. As Culliton CJS said in Re Shumiatcher v Law Society of Saskatchewan (1966) 60 DLR (2d)318, at 328,

"When a complaint is made against a solicitor which may result in his suspension or disbarment, effect should not be given thereto unless the grounds of the complaint are established by convincing evidence, and when the complaint involves a criminal act, by evidence establishing the grounds beyond a reasonable doubt. In the assessment of the evidence, the solicitor's explanation should be accepted if there is a reasonable probability of it being true".

(3) The words "stricter standard of proof" involve a flexible concept. The only rule must be, as Litton VP said in the passage quoted above, the appropriate standard of proof should be commensurate with the gravity of the charge. This is not new law. The more serious the charge, the more cogent the evidence must be to prove it. The logic here is that the more serious the allegation, the less likely it is that the event occurred:- see Re H (Minors) [1996] AC 563, at 586E.

(4) Thus, where in disciplinary proceedings, the charges amount to serious charges of a criminal nature, the requisite standard of proof will be the criminal standard of proof:- see Tse Lo Hong at 442E (per Bokhary JA) and 444B (per Godfrey JA). The word "serious" is an interesting qualification and I leave open for a future case the consideration of disciplinary charges which coincide with crimes but which are on the lower end of the spectrum regarding seriousness. In Tse Lo Hong, of course, involving a charge of indecent assault, the criminal standard of proof had to be applied.

(5) In the case of the present inquiry, the Medical Council applied in relation to the charges the same standard that was applied by the Medical Council in Hui Yat Ming v. Medical Council of Hong Kong [2002] 1 HKC 218 (a case involving the negligent prescription of a steroid). The standard of proof was stated in these terms at 226H-I,

"It is higher than the civil standard of balance of probability but it may not be as high as the criminal standard of beyond reasonable doubt."

Notwithstanding the word "may", what was meant is that the standard of proof was higher than a balance of probabilities but not as high as the criminal standard. I do not quarrel with that formulation. The charge was a serious one (and this was the view taken by the Medical Council: see paragraph 24 above) and the consequences for the Appellant if he was found guilty, were also of course serious.

30.As I have remarked, the issue of the standard of proof was expressly abandoned by Mr McCoy. I now deal with the issues I have earlier identified.

Issue 1 : Lack of Reasons for Decision

31.The Medical Council's decision, together with its reasons, were given to the parties on the same day as final submissions were made. The decision was given after the Council had retired to deliberate.

32.In its Reasons for Decision, the Medical Council dealt with the issues it had to resolve (see paragraph 19 above). It recognized that much hinged on whether Madam Wong was a reliable witness. It stated, "The charge in this matter can only be made out if the Council accepts that Madam Wong is a reliable witness". The Reasons for Decision then continued to record the fact that after having considered "all the evidence", the Medical Council concluded that Madam Wong's version of events was to be preferred.

33.In my view, this was sufficient and no justifiable complaint can be leveled against the Council on the basis of inadequacy of reasons. In the absence of any indication that members of the Council were somehow not aware of the issues and sub-issues that arose, I find it difficult to accept the argument that the Medical Council had analyzed the evidence other than diligently and properly. In the Reasons for Decision, it is recognized that there was a conflict of evidence between the versions of fact presented by the Appellant and by Madam Wong. It must therefore also have been recognized that this conflict had to be resolved. Having just heard extensive and detailed submissions from the Appellant's counsel and the Legal Officer going into both law and fact, the Council must have considered these submissions in analyzing the issues before it.

34.The Medical Registration Ordinance is silent on whether reasons for a decision must be given, but as a matter of fairness, where the consequences of a disciplinary hearing are serious (as in the present case), it must be an extremely rare case for reasons for a decision not to be required. In Dr Ip Kay Lo Vincent v Medical Council of Hong Kong [1999] 1 HKLRD 491, it was said that a person was entitled to know what it was to which the relevant tribunal was addressing its mind and also the basis of fact on which any conclusions are reached, although the setting out of basic facts and the giving of reasons need not take more than a few short sentences:- see 504 per Rogers JA referring to R v Immigration Appeal Tribunal ex p Khan (Mahmud) [1983] QB 790 and Lau Tak Pui & Ors v Immigration Tribunal [1992] 1 HKLR 374. See also in this context the judgment of Lord Rodger of Earlsferry in Gupta v General Medical Council [2002] 1 WLR 1691, at 1694-5 (paragraph 6). The underlying rationale is of course not just fairness to the individual concerned to know why his peers have found against him, but also more generally that unless reasons are given, it may not be obvious at all that justice has been done. In Sin Chung Yin Ronald and Others v The Dental Council of Hong Kong, unreported, CACV 1211 of 2001, 18 December 2002, the majority of the Court of Appeal was of the view in the circumstances of that case ("simple and straightforward", with issues and facts said to be "obvious") that even without reasons having been given for the finding of professional misconduct, the "basis for the decision [of the Dental Council] is also beyond doubt". Accordingly, the majority held the fact that reasons were not provided by the Dental Council did not vitiate the decision. That decision, in my view, is a case decided on its particular and exceptional facts, exceptional because the basis for the decision was, as the Vice President put it, "beyond doubt". However, Rogers VP reiterated that it is a counsel of prudence for a disciplinary tribunal to give reasons, echoing his judgment in Ip Kay Lo.

35.In the present case, the Medical Council was obliged to give reasons. It did and did so adequately in the context of the case and the issues it had to decide. It is clear that it preferred the evidence of Madam Wong to the testimony of the Appellant and his witnesses. There can be no doubt that the Medical Council considered the evidence of all relevant witnesses and the submissions that were made to it. It said so in express terms. It is true that a professional judge may have given more reasons as to why the evidence of one witness was to be preferred to that of another or have conducted a more detailed analysis, but this is not the test. It is to be noted that the nuances and sub-issues that arose under the main issues with which the Medical Council had to deal, were properly identified by counsel for the Appellant and by the Legal Officer. These were no doubt considered by the Medical Council, especially when they were made just before the Council retired to deliberate on their decision.

Issue 2: Were the findings and conclusions reached by the Medical Council "out of tune" with the evidence?

36.The Appellant's arguments here ultimately were not so much that the findings of the Medical Council were "out of tune" with the evidence as a whole, but rather that they were inconsistent with the evidence produced by the Appellant or the evidence said to be in his favour. The findings were of course entirely consistent with the evidence produced by the Legal Officer against the Appellant, in particular the testimony of Madam Wong. In accepting her testimony, the Medical Council was fully entitled to make the findings and reach the conclusions it did.

37.I perceive the Appellant's real complaint was that the Medical Council did not articulate its reasons for rejecting the evidence said to be in his favour or why it accepted the testimony of Madam Wong. It has not been suggested that the Medical Council was somehow not entitled to accept Madam Wong's evidence. Nor has it been suggested that the Medical Council had no alternative but to place weight and rely on the Appellant's evidence. At first, Mr McCoy submitted (in his written submissions) that the Council had not found Madam Wong to be a reliable witness, only a truthful one. However, it is clear from the Medical Council's Reasons for Decision that it found her to be both truthful and reliable. In my view, the Medical Council, as the arbiter of fact, was perfectly entitled to rely on the testimony of Madam Wong. Despite the submission that her evidence was somehow inherently unreliable and inconsistent, the points made were of minor importance and certainly not sufficient to pave the way of any argument that her evidence simply had to be rejected.

38.I now come to the evidence said to be in the Appellant's favour. Mr McCoy submitted that in particular, there was no reason for the Medical Council to have ignored the evidence of Dr Richard Kay (to whose evidence I have already referred in paragraph 14 above). It will be recalled that Madam Wong consulted Dr Kay in September and November 1992 at the Prince of Wales Hospital. No mention was made in Dr Kay's notes that Madam Wong was taking Dexamethasone. The significance of this omission was of course that it therefore put into doubt Madam Wong's allegation that she had been prescribed Dexamethasone by the Appellant.

39.Mr McCoy also drew our attention to the evidence of Ms Kong Mei Lin, Ms Poon Kam Shiu and Ms Lau Shui Fun. Ms Kong gave evidence to the effect that the Dexamethasone stocked by the Appellant in his clinic came only in the form of round blue tablets and not the yellow pentagonal ones described by Madam Wong. She also said the clinic would order Dexamethasone only from Ms Poon of Christo Pharmaceutical Ltd. Ms Poon confirmed in evidence that the Dexamethasone supplied to the Appellant's clinic were in the form of round blue tablets, never in the yellow pentagonal form.

40.Ms Lau, also a nurse working for the Appellant, gave evidence in relation to the second charge of the failure to maintain proper medical records. She said that the Appellant's clinical notes regarding Madam Wong's visits (said only to be three) were accurate.

41.The burden on a party wishing on appeal to disturb primary findings of fact made by a tribunal such as the Medical Council, is high. It is no different than in the case of an appeal from the Court of First Instance to the Court of Appeal. In Julius Libman v General Medical Council [1972] AC 217, the Privy Council made precisely this point by its general observation that a finding of fact could not be displaced on appeal unless it was shown that something was "clearly wrong":- see 221E-F. The words "clearly wrong" refer to:- (i) some significant error in the conduct of the hearing; (ii) an error in the legal principles applied or (iii) as relied upon by the Appellant in this appeal, that the findings were "sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread":- see 221F-G. The principles of Libman were applied by this court in Dr Mu Lie Lian v Medical Council [1994] 3 HKC 8 and in Dr Kwan Chee Keung v Medical Council of Hong Kong (No.2) [1999] 2 HKLRD 224. It is also worth noting as a useful rule of thumb that an appellate court will only reverse the findings of the tribunal below if, on reviewing the evidence as a whole, the "only possible conclusion" is to suggest a reversal of what was found:- see the observations of Godfrey JA in Tse Lo Hong v Attorney General at 444E-G.

42.In the present case, the Appellant has come nowhere near the required threshold:-

(1) As I have already remarked, it was not suggested on his behalf that the Medical Council was somehow precluded from relying on Madam Wong's evidence or from rejecting the evidence of (at least not placing weight on) the other witnesses identified above. As the Reasons for Decision show, the Medical Council took into consideration all the evidence before it.

(2) The effect of the evidence of Dr Kay, Ms Kong, Ms Poon and Ms Lau could not have been lost on the Medical Council, for the same points now made on appeal were just as forcefully made by the Appellant's counsel below.

(3) It is clear from the transcripts of the hearing that concerns were raised as to the accuracy or recollection of these 3 witnesses. This was hardly surprising given that the relevant events took place about 10 years before the hearing. Indeed, in his written submissions, Mr McCoy made the point, "all the witnesses, save for [Madam Wong] to a certain extent, had forgotten almost everything about the relevant events". Ms Kong and Ms Poon were in particular questioned as to their recollection of the Dexamethasone supplied to the Appellant's clinic. Ms Poon accepted that it was only her "impression" that the Appellant ordered Dexamethasone only in the blue tablet form.

(4) As for Dr Kay, after questioning from one of the Council members, he said that if he did not recognize any drug (particularly those that were not within his specialty), he would not record it in his notes. Despite persistent questioning from the Appellant's counsel, Dr Kay at no stage said that if he was shown Dexamethasone by Madam Wong, he would have recognized it as such and recorded it.

(5) I have referred in the previous two sub-paragraphs to certain aspects of the evidence of those witnesses whose evidence was relied on by the Appellant in this appeal, not so much as an explanation as to why their evidence was not taken into account by the Medical Council but to illustrate the point, accepted I think by Mr McCoy, that there was nothing that should have compelled the Council to give their testimony the weight that the Appellant now says should have been accorded.

(6) As stated above, I am of the view that the Medical Council was perfectly entitled to arrive at the findings and reach the conclusions it did.

43.As to the submission based on the re-amendments sought to be introduced by the draft Notice of Appeal, namely, that at no stage was it put to the Appellant or his witnesses that he had forged the records or had engaged in activity that amounted to a conspiracy to pervert the course of justice, these can be dealt with shortly. These were not the charges that were made against the Appellant to which he had to answer. The acceptance of Madam Wong's evidence by the Medical Council (and correspondingly not taking into account the evidence said to be in the Appellant's favour), did not amount to any finding of criminal activity. Nor did the rejection of the evidence of the Appellant's witnesses necessarily mean that the Medical Council found that they were lying. The arguments raised by the Appellant were really intended to shore up the arguments based on standard of proof which in the end were not pursued. As a matter of form, therefore, leave to introduce these new points in the draft Re-Amended Notice of Appeal was accordingly refused.

Issue 3: The identification of the pills

44.This argument, not pursued with any enthusiasm by Mr McCoy, can also be dealt with briefly. When Madam Wong consulted Dr Woo, she was shown some yellow pentagonal pills which she confirmed to be the same as those prescribed by the Appellant. This identification was said by the Appellant to be unfairly prejudicial to his interests in that it was effectively suggested to her by Dr Woo that she was prescribed Dexamethasone by the Appellant. This submission can be rejected. Madam Wong was shown the yellow pills by Dr Woo after she had already described to him the pills prescribed by the Appellant:- this evidence came not only from Madam Wong herself but also from Dr Woo and the friend who accompanied her to Dr Woo's clinic (Madam Sin Yuet Ling). Before she was shown the pills by Dr Woo, she had described them to him as being yellow and pentagonal in shape.

45.The other criticism made by the Appellant was in relation to the so called "dock identification" of the yellow pentagonal pills. This was said to be even more prejudicial to the Appellant. Indeed, it may have been but not unfairly or improperly so. All that Madam Wong did was to identify the very drug about which she was giving evidence.

Issue 4: Disjointed nature of hearing

46.I have already in paragraph 17 above set out the dates of the hearing. The five days took place over a period of some 13 months. The argument here was that this must have resulted in the Medical Council not having any clear recollection of relevant matters at the time it arrived at its decision. In particular, it was said that this rendered the consideration of the testimony of witnesses as being one decided by transcripts rather than on the actual oral evidence given by the witnesses. This was said to amount to a violation of the Appellant's right to a fair hearing contrary to Article 14(1) of the International Covenant on Civil and Political Rights (guaranteed by Article 39 of the Basic Law).

47.There is no substance to these arguments. The mere fact of a disjointed hearing does not support any of the criticisms leveled against the Medical Council. When one examines what actually happened, the point is even less attractive. First, the Medical Council was taken extensively through the evidence and law by both the Legal Officer and the Appellant's counsel. There was no indication that the Medical Council did not absorb or understand those submissions. Secondly, at no stage did the Appellant's counsel make submissions based on any unfairness arising from the disjointed nature of the proceedings.

Issue 5: Legal Adviser retiring with members of the Medical Council

48.Regulation 8(1) of the Medical Registration (Miscellaneous Provisions) Regulation states as follows:-

"When the Legal Adviser to the Council advises the Council on any question of law as to evidence, procedure or any other matter, in any inquiry under section 21 of the Ordinance, an appeal hearing from a decision of a committee or a meeting of the Council pursuant to an election petition under the Medical Practitioners (Electoral Provisions)(Procedure) Regulation (Cap.161 sub. leg.), he shall do so in the presence of every party to the proceedings or the person representing each party or, if the advice is tendered after the Council has commenced to deliberate as to its findings, every such party or person as aforesaid shall be informed of the advice that the Legal Adviser has tendered. (Emphasis added).

49.Immediately, it can be seen from the highlighted words of this Regulation that a situation is envisaged in which the advice of the legal adviser to the Medical Council is given in the absence of the parties, namely, after the Council has commenced to deliberate. The proviso here is that the parties must be informed of any advice proffered by the legal adviser in these circumstances.

50.In the present case, the legal adviser to the Medical Council retired with the Council, adopting the procedure described in paragraph 21 above. In Lam Kwok Pun v Dental Council of Hong Kong, Mayo VP said this at 184I-185A,

"We would observe in passing that it would not appear to be a satisfactory procedure for a legal adviser to adjourn with the Board when it is deliberating upon the material which has been placed before it. The legal adviser should have made her submissions in public and thus have afforded the dentist's counsel an opportunity of commenting upon it."

51.In my view, it is important to bear the following in mind:-

(1) A legal adviser, in an inquiry under section 21 of the Medical Registration Ordinance, is not a member of the Medical Council and has no part to play in its deliberating functions. His only function, as his title suggests, is to provide legal advice to the Council should this be required. Regulation 8(1) refers to the legal adviser advising on questions of law, evidence, procedure or "any other matter". These last few general words do not, however, permit him to participate in the deliberations of the Medical Council. That is solely the function of the Council itself.

(2) It is in this statutory context that the obiter dicta of Mayo VP in Lam Kwok Pun have to be understood. The Court of Appeal in that case was of course dealing with a decision of the Dental Council of Hong Kong, but Regulation 37(1) of the Dentists (Registration and Disciplinary Proceedings) Regulations, Cap.156 (which applied in that case) is the equivalent of Regulation 8(1) of the Medical Registration (Miscellaneous Provisions) Regulation. If what was intended by the dicta of Mayo VP set out above, was merely that a legal adviser should not participate in the deliberations of the Council, I would respectfully agree. However, if what was said extends to a submission that the advice of a legal adviser should only be given in public, then this is contrary to what Regulation 8(1) specifically allows and is wrong. I note from the report of that decision that it does not appear that Regulation 37(1) of the Dentists (Registration and Disciplinary Procedure) Regulations was cited to the Court of Appeal.

(3) It is perhaps a matter for the Medical Council itself in the future whether or not to permit its legal adviser to be present in the same room when it deliberates, but perhaps the better course would be to deliberate on its own and only call upon the legal adviser to attend if his advice is required. In any event, any advice given to the Council must be disclosed to the parties as required by Regulation 8(1).