Dr Lau Koon Leung v. Medical Council of Hong Kong

CACV 250/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 250 OF 2004

(ON APPEAL FROM MEDICAL COUNCIL)

BETWEEN

Before : Hon Cheung JA, Yuen JA and Lam J in Court

Dates of Hearing : 30 September 2005 and 15 February 2006

Date of Judgment : 14 March 2006

______________________

J U D G M E N T

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Hon Cheung JA : 

The facts

1.Under section 21(1) of the Medical Registration Ordinance (Cap. 161) the Medical Council of Hong Kong may after inquiry, impose punishment on a medical practitioner who has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment.  This is a separate power from punishing a medical practitioner for professional misconduct.

2.The appellant is a medical doctor.  He was charged by the Medical Council that he

‘ being a registered medical practitioner, (was) convicted at the North Kowloon Magistrates’ Court on 19 June 2003 of 47 offences punishable with imprisonment, namely 47 counts of failing to keep proper record of dangerous drugs, contrary to Regulations 5(1)(a) and 5(7) of the Dangerous Drugs Regulations, made under the Dangerous Drugs Ordinance, Cap. 134, Laws of Hong Kong.’

3.Regulation 5 of the Dangerous Drugs Regulations (Cap. 134) requires the medical practitioner to keep a register for the dangerous drugs.  Regulation 6 deals with the format of the entry in this register.

4.Of the 47 offences, the appellant was fined by the magistrate of $470,000 which was based on a fine of $10,000 for each of the 47 offences.  On appeal to the High Court, the individual fine was reduced to $2,500 each making a total fine of $117,500.  In addition the drugs in question was ordered to be forfeited.

The penalty

5.The appellant did not contest the charge before the Medical Council.  It ordered him to be removed from the General Register for a period of nine months.  He now appeals to this Court against the penalty.

Libman v. General Medical Council

6.Appeals from the Medical Council go directly to the Court of Appeal.  For many years this Court has adopted the approach of the Privy Council in Libman v. General Medical Council [1972] AC 217 which until recently heard appeals directly from decisions of the General Medical Council of England.  Lord Hailsham of St Marylebone held that

‘ ....although the jurisdiction conferred by the statute is unlimited, the circumstances in which it is exercised in accordance with the rules approved by Parliament are such as to make it difficult for an appellant to displace a finding or order of the committee unless it can be shown that something was clearly wrong either (i) in the conduct of the trial or (ii) in the legal principles applied or (iii) unless it can be shown that the findings of the committee were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread.  Or, of course, an appellant can rely cumulatively or in the alternative on any combination of the three.’

Hong Kong applying Libman

7.This approach was first adopted by this Court (Huggins VP, Cons JA, Garcia J) in Keeson Shum v. The Medical Council of Hong Kong [1980] HKLR 868.

8.According to the diligent research of Mr. McCoy S.C., counsel for the appellant, Libman was applied in this Court either expressly or by implication in at least the following cases :

Express application

1. Albert Wou v. Medical Council of Hong Kong [1988] 1 HKLR 388 (Cons VP, Clough and Power JJA)

2. Dr. Mu Lie Lian v. Medical Council of Hong Kong [1994] 3 HKC 8 (Litton JA, Mayo and Sears JJ)

3. Ng Mei Sin v. Medical Council of Hong Kong [1995] 1 HKC 242 (Mortimer and Godfrey JJA, Rogers J)

4. Dr. Chow Siu Shek David v. Medical Council of Hong Kong [1995] 2 HKC 527 (Nazareth VP, Bokhary and Liu JJA)

5. Dr. Chan Mei Ying Maria v. Medical Council of Hong Kong [1995] 3 HKC 41 (Nazareth VP, Bokhary and Liu JJA)

6. Dr. Kwan Chee Keung v. Medical Council of Hong Kong [1999] 1 HKC 226 (Nazareth VP, Godfrey and Rogers JJA)

7. Dr. Wu Hin Ting v Medical Council of Hong Kong [2004] 2 HKC 367 (Ma CJHC, Woo VP, Suffiad J)

Applied by implication

1. Dr. Lai Chung Lim Peter v. Medical Council of Hong Kong [1996] 3 HKC 71 (Godfrey, Mayo and Ching JJA)

2. Dr. Mao Chung Ting v. The Medical Council of HK (CACV No. 182 of 1995) (Litton VP, Godfrey JA and Ryan J)

9.These cases showed that the Libman approached has been applied both in terms of the findings and also the penalty imposed by the Medical Council.  The later category included cases such as Ng Mei Sin, Dr. Chow Siu Shek, David and Dr. Kwan Chee Keung.  The approach of this Court in terms of appeal against penalty imposed by the Medical Council is best summarised in Ng Mei Sin :

'The medical profession is entrusted with regulating its own affairs and its own members.  The Medical Council is uniquely qualified to assess the proper sentence to be imposed upon its members for professional misconduct — whether brought before the Medical Council as this case on a conviction, or in other cases under s 21(1)(b) where other professional misconduct is alleged.  It must be a better qualified tribunal to deal with the professional implications of that conduct than this court.  Generally, therefore, we must assume that the Medical Council is a better judge of the appropriate sentence.  However, this court has powers to interfere.  It will only interfere where the sentence imposed is plainly and obviously inappropriate and out of tune with the evidence upon which the Medical Council is acting.' (emphasis added)

10.In Dr. Mao Chung Ting this Court affirmed this view and said that

'it would require a very strong case for this court to intervene'

'Unless it can be shown that the sentence imposed by the Council is out of tune with the evidence or is in some way wrong in principle, this court will not interfere with the Council's exercise of judgment.'  (emphasis added)

Ghosh v. General Medical Council

11.Recently the Privy Council has departed from the stricture imposed by Libman.  The best exposition of this topic can be seen from the speech of Lord Millet in Ghosh v. General Medical Council [2001] 1 WLR 1915 :

'34  It is true that the Board’s powers of intervention may be circumscribed by the circumstances in which they are invoked, particularly in the case of appeals against sentence.  But their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past.  In Evans v General Medical Council (unreported) 19 November 1984 the Board said:

“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 graduation 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.  This Board does not have that advantage nor can it have the same capacity for judging what measurers are from time to time required for the purpose of maintaining professional standards.”

For these reasons the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public.  But the Board will not defer to the committee’s judgment more than is warranted by the circumstances.  The council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the committee for reconsideration.'  (emphasis added)

12.In that case arguments were advanced on whether the Professional Conduct Committee of the General Medical Council (‘PCC’) satisfied Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the European Convention’).  The requirement imposed by the Article is that either the PCC constitutes an independent and impartial tribunal or, if not, its processes be subject to control by an appellate body with full jurisdiction to reverse its decision.

13.Lord Millet said that it was not necessary to consider whether the PCC as presently constituted fulfilled the European Convention requirements of independence and impartiality, because the Privy Council was satisfied that its own jurisdiction was sufficient to remedy any deficiency there may be in these respects.

14.Although this statement was made in response to the argument on Article 6(1), it was also couched in wide terms.  In my view this statement is also of general application on the jurisdiction of the court on hearing appeals from the General Medical Council.  In other words the application of this statement is not exclusively confined to the determination of an Article 6(1) inquiry on the nature of a tribunal and an appellate court which exercises supervisory control over it.  The fact that either the tribunal or the appellate court may satisfy the test of a ‘competent, independent and impartial tribunal’ under such an inquiry does not mean that this is the only way in which this statement can be applied.  After all Lord Millett is construing the ambit of the jurisdiction of the Privy Council.

15.It is also due to the advance of the human right legislations that spurs the reappraisal by the courts themselves to the ambit of their own jurisdiction on hearing appeals from specialised tribunals.  This is made clear in the next Privy Council decision.

Preiss v. General Dental Council

16.In Preiss v. General Dental Council [2001] 1 WLR 1926 Lord Cooke of Thorndon (who sat with Lord Bingham of Cornhill and Lord Millett) stated that,

'27    Since the coming into operation of the Human Rights Act 1998, with its adjuration in section 3 to read and give effect to legislation, so far as it is possible to do so, in a way compatible with the (European) Convention rights, any tendency to read down rights of appeal in disciplinary cases is to be resisted.  In Ghosh v General Medical Council [2001 1 WLR 1915, 1923 F-H the Board has recently emphasised that the powers are not as limited as may be suggested by some of the observations which have been made in the past.  An instance, on which some reliance was placed for the General Dental Council in the argument of the present appeal, is the observation in Libman v General Medical Council [1972] AC 217, 221, suggesting that findings of a professional disciplinary committee should not be disturbed unless sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence was misread.  That observation has been applied from time to time in the past, but in their Lordships’ view it can no longer be taken as definitive.  This does not mean that respect will not be accorded to the opinion of a professional tribunal on technical matters.  But, as indicated in Ghosh, the appropriate degree of deference will depend on the circumstances.  In the instant case the weaknesses already identified in the dental disciplinary structure and the failure to comply with rule 11(2) go to diminish any reluctance that the Board might otherwise have in differing from the PCC.  Against this background the Board now gives its own opinion on the case.'  (emphasis added)

Sadler v. General Medical Council

17.In Sadler v. General Medical Council [2003] 1 WLR 2259 the Privy Council concluded that the Committee on Professional Performance (‘CPP’) of the General Medical Council of England (‘GMC’) did satisfy the requirement of Article 6 of the European Convention.  It further held in that case it was not necessary to consider whether its own jurisdiction on hearing appeal from the CPP satisfied Article 6(1) of the European Convention.

18.One can see from this summary that Ghosh and Sadler were dealing with different committees of the GMC.  The former was dealing with PCC, while the latter was with CPP.  Further, the fact that the CPP satisfied the Article 6(1) requirement does not mean that the jurisdiction of the Privy Council must necessarily be ‘read down’.

Hong Kong Bill of Rights

19.The decision of Ghosh on how Article 6(1) of the European Convention can be satisfied by either the decision-making tribunal itself or by an appellate body which controls it is in the same line as the Hong Kong approach in respect of the ambit of Article 10 of the Bills of Rights Ordinance (‘BOR’) : see OTIS Elevator Company (HK) Limited v. Director of Electrical and Mechanical Services (CACV No. 184 of 1994).  Article 10 is also concerned with the requirement of a competent and impartial independent tribunal in, among other things, adjudications affecting a person’s civil rights. 

International Covenant on Civil and Political Rights

20.By parity of reason, this applies to the meaning of ‘complete, independent and impartial tribunal’ contained in Article 14 of the International Covenant on Civil and Political Rights (‘ICCPR’) as applied to Hong Kong by the Basic Law.

The issue in this appeal

21.This Court has not previously been asked to decide whether the Medical Council satisfies the ‘competent, independent and impartial tribunal’ requirement in the BOR or ICCPR.  Nor it is being asked to do so in the present appeal.  My view expressed in Dr. Ip Kay Lo Vincent v. Medical Council of Hong Kong (No. 2) [2003] 3 HKC on Article 10 of BOR was specifically on the issue of legal representation in hearing before the Medical Council and not on whether the Medical Council was a ‘competent, independent and impartial tribunal’.

22.In the present case the issue is also not on whether the Medical Council or this Court satisfies the requirement of either Article 10 of BOR or Article 14(1) of ICCPR but rather, in the light of the Privy Council’s recent view on its jurisdiction, this Court’s approach on appeals from the Medical Council should be revised.

My view

23.Although after 1997 Privy Council decisions are only persuasive authorities on Hong Kong courts, in my views substantial weight should be given to its view as expressed in the Ghosh line of cases on the proper approach to be adopted because it was based both on a construction of jurisdiction in hearing appeals from specialist tribunals and on Article 6(1) of the European Convention which is in substantially similar terms to Article 10of BOR and Article 14(1) of ICCPR.

24.On this basis I will adopt the statement of Lord Millett in Ghosh which, if I may respectfully say so, is based on sound principle having examined the ambit of the jurisdiction of the Privy Council.  This approach is consistent with the jurisdiction conferred on this Court by section 26 of the Medical Registration Ordinance (Cap. 161) which provides that this Court may reverse or vary the order appealed against, or remit the case to the Medical Council for an, or another, inquiry.  The jurisdiction is in wide terms.

25.I will also adopt the reasoning of Lord Cook’s view in Preiss that with the advance of the BOR and ICCPR the previous approach adopted by this Court on ‘reading down’ its jurisdiction on hearing appeals from the Medical Council should not be followed. 

26.Mr. Sakhrani, counsel for the Medical Council, agreed that on the basis that this Court is relying on the similarity of the human rights provisions, this Court is free to adopt the new approach advanced by the Privy Council and the restriction imposed on this Court in departing from a previous decision of its own (as laid down in Young v. Bristol Aeroplane Company Limited [1944] KB 718 and applied by this Court in Cheung Lai Wah (an infant) v. Director of Immigration (No. 2) [1998] 2 HKC 382) is not engaged.

27.This approach in fact has been foreshadowed by Litton VP in Dr. Mao Chung Ting where he, after referring to the approach that this Court will not interfere unless the sentence imposed by the Medical Council is out of tune with the evidence or is some way wrong in principle, stated that

'On the other hand, there is this to be said: This court’s supervisory responsibility over the exercise of disciplinary powers by professional bodies generally is very wide.  It is spread over many other professions apart from that of medical practitioners.  This court therefore has the advantage, denied to the Medical Council, of evaluating the gravity of professional misconduct generally over a much wider field and in that sense is in a position to exercise finer judgment than the Medical Council.'

28.Having said that the principle in the Ghosh line of cases is to be applied, I am, of course, dealing with the issue that is before us, namely, how this Court should approach the decisions of the Medical Council on appeal to this Court.  How this Court should exercise its jurisdiction on hearing appeals from lower courts and other tribunals is simply not an issue in this case and should not be used to distract us from the real question involved here.

The new approach

29.On this approach, this Court is entitled (applying Ghosh and Preiss) to consider all the matters raised by the appellant (including previous penalties imposed by the Medical Council); to decide whether the removal or the length of removal from the General Register was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the Medical Council for reconsideration.

The appellant's case

30.In this case the appellant had two clinics.  Forty seven summons were issued against him because he had kept a total of 47 separate registers in these two clinics for either different brands of drugs or the same drug but with different weights. 

31.His breach consisted of the following :

1. The registers failed to record the identity card number of the patient to whom the drug was supplied.

2. There was unauthorised alteration to the registers.

3. There was discrepancy between the drugs seized and the balances recorded in the registers.

32.The dangerous drugs consisted of nine different types :

(1) Flunitrazepam

(2) Bromazepam

(3) Triazolam

(4) Amfepramone

(5) Chlordiazepoxide

(6) Nitrazepam

(7) Phentermine

(8) Diazepam

(9) Lorazepam

33.The nature of the drugs were sleeping tablets, slimming tablets and tablets for patients with symptoms of anxiety.  The discrepancy was about 49,000 tablets.

34.The explanation given to the Medical Council by the appellant’s solicitor about the charge was :

1. 'Although Dr. Lau did not record the patients’ identity card number in his dangerous drugs records as required by the Regulations, he did record the relevant patients’ number in his dangerous drugs records so that it was possible for him to cross-check against his patient records every time, to find out exactly what and how much was prescribed to each patient.  This mistake was due to a misunderstanding of Dr. Lau as he was somewhat confused by the footnote to the format of the record as appeared in the Regulations.'

2. 'Although he did not include the columns for the amount received or supplied, and the invoice number which were required by the Regulations, he did record in his registers the amount received and the company from which the drugs were received, as well as the date on which they were received in respect of each drugs.  He unwittingly used correction ink to correct his records because at that time he did not know that such was actually not permissible under the Regulations.'

3. 'In relation to the calculation error which attributed to the discrepancies between the records and the stock, he would like to take Council through an example that had been made in this case.  For instance, in relation to the drug Duromine 15 mg at the Tuen Mun Clinic, the nurse who made the relevant entry put down “54488” instead of “24488”, which resulted in the balance that was inflated by 30,000 tablets.  Now this had been explained to the Department of Health when they first visited Dr. Lau’s clinic, and again in the interviews that followed.  This unfortunate error was also brought to the magistrate’s attention at the hearing in June last year.'

35.As stated by Deputy Judge Longley who heard the appellant’s appeal from the decision of the magistrate,

'It was not suggested that any of the drugs were used by drug addicts in association with their addiction nor was it suggested that there was any over-prescribing or prescribing to patients of whom there were no records.'

36.The appellant’s case is that he was a very busy doctor who did not take enough care in the administrative side of his practice and that these was simply a case of bad record keeping.

The decision of the Medical Council

37.The Medical Council in its decision stated that

'5. We note that some of the drugs in question were addictive drugs, liable to abuse, and the quantity of drugs involved in the discrepancies were extraordinarily large.  Registered medical practitioners are given the privilege to possess and supply dangerous drugs, and with that privilege comes a heavy responsibility to ensure that the drugs are carefully controlled and accounted for so as to prevent the drugs from falling into the wrong hands.  It is no mitigation that the Defendant was not fully aware of the responsibility, nor to say that the duty was carried out carelessly by the nurses on his behalf.'

Previous decisions of the Medical Council

38.Mr. McCoy submitted that the nine months suspension was harsh and out of place with the previous decisions of the Medical Council.  The Medical Council has, at the direction of this Court, produced the decisions of the Medical Council on a similar charge for the period 1996-2003.  These cases occurred after the statutory penalty had been revised upwards.  It is necessary to examine those decisions which imposed a penalty of removal from the General Register.

1.     Dr. Chan Chuen Kin (Decision of the Medical Council : 4/1/1996 and 25/2/1998)

1) Dr. Chan was convicted of failing to keep proper records of the following dangerous drugs :

(1) 149 Wellconal tablets (dipipanone)

(2) 35 ampoules of Valium injection (diazepam)

(3) 84 Dormicum tablets (midazolam)

(4) 213 Chlordiazepoxide capsules

(5) 16 Methadone tablets

(6) 198 Ativan tablets (Lorazepam)

(7) 80 Kratium tablets (diazepam)

(8) 106 Xanax talbets (alprazolam)

(9) 880 Chlordiazepoxide tablets

(10) 822 Kratium tablets (diazepam)

(11) 263 Flunita tablets (flunitrazepam)

He was fined $7,000.  The total quantity of drugs was about 2,846 tablets. 

2) On 4 January 1996 he was removed by the Medical Council from the General Register for three months suspended for two years subject to him not being found guilty of any disciplinary offence during that period.

3) Dr. Chan was later convicted of three charges of failing to keep a proper dangerous drugs register and two charges of failing to keep the dangerous drug in a locked receptacle. 

4) On the first three charges, he was sentenced to a total of six months imprisonment.  The other two charges attracted a fine of $5,000 each.

5) In view of this conviction, on 25 February 1998 the Medical Council deleted the suspension and removed him from the General Register for three months.

2.     Dr. Young Ka Lam, Kenneth (Decision of the Medical Council 28/5/1998)

1) In 1997, Dr. Young was convicted of two charges of failing to keep a dangerous drugs register and one charge of failing to keep dangerous drug in a locked receptacle.  He was fined $45,000 respectively for the first two charges and $2,000 for the third charge.

2) The amount of drugs of which no record was kept was staggering.  The total amount was 1,590,000 tablets.  For the first charge there were seven types of dangerous drug of over 217,000 pills.

(1) Lorazepam (145,000 tablets)

(2) Lormetazepam (29,000 tablets)

(3) Chlordiazepoxide (15,000 tablets)

(4) Bromazepam (16,000 tablets)

(5) Methadone (7,500 tablets)

(6) Dipipanone (3,450 tablets)

(7) Pinazepam (1,147 capsules)

Of the second charge, three types of dangerous drugs of over 1,373,000 pills were involved :

(1) Phentermine (1,256,900 capsules)

(2) Diazepam (72,000 tablets)

(3) Nitrazepam (45,000 tablets)

3) Later that year he was convicted of five charges of failing to keep a proper dangerous drugs register.  The sentences imposed were fine of $3,000, $10,000 and $7,000 respectively for the first three charges; four months imprisonment suspended for 12 months and fine of $45,000 for the fourth charge; and one months imprisonment suspended for 12 months and fine of $20,000.  The imprisonment was concurrent. 

4) Again the amount of drugs involved were huge.  The total quantity was over 381,000 tablets.

(1) Methadane (10 tablets)

(2) Bromazepam (750 tablets)

(3) Lorazepam (455 ablets)

(4) Phentermine (360,000 tablets)

(5) Lormetazepam (20,000 tablets)

5) On the first set of offences, in respect of the two counts of failure to keep a register the Medical Council on 28 May 1998 removed him from the General Register for six months.

6) For the second set of offences, the penalty was removal from the General Register for 12 months consecutive to the six months removal.

3.     Dr. Sung Kei Yu (Decision of the Medical Council 12/11/1998)

1) Dr. Sung was convicted of six charges of failing to keep a dangerous drugs register.  For the first four convictions he was fined $3,000 each and for the last two, he was fined $2,000 each.

2) The drugs were of three types

(1) Duromine

(2) Diazepam

(3) Tranpoxid tablets containing Chlordiazepoxide.

The total quantity was over 6,800 tablets.

3) On 12 November 1998 he was removed from the General Register for three months suspended for one year with condition.

4.     Dr. Ching Chi Sau (Decision of the Medical Council : 24/2/2000)

1) Dr. Ching was charged with professional misconduct in respect of the following :

(i)  he did fail to keep proper records of dangerous drugs, namely Diazepam, Lorazepam, Chlordiazepoxide, Alprazolam, Bromazepam, Phentermine, Triazolam, Morphine and Atropine liquid, and Lormetazepam, as stipulated in Regulations 5 and 6 of the Dangerous Drugs Regulations.  The quantity was over 3,000 tablets.

(ii)   he did possess and supply Phentermine which he was not permitted to possess, supply or use in the course of professional practice under section C of the Code of Practice for Medical Practitioners registered with limited registration in accordance with promulgation (No. 3) under section 14A of the Medical Registration Ordinance; and

(iii)  he did maintain over 2,000 tablets of Chlordiazepoxide which was not permitted under section C of the Code of Practice for Medical Practitioners registered with limited registration in accordance with promulgation (No. 3) under section 14A of the Medical Registration Ordinance.

2) On 24 February 2000 he was removed from the General Register for six months, suspended for 12 months with condition.

5.     Dr. Tsang Kuen Pong (Decision of the Medical Council : 23/8/2001)

1) Dr. Tsang was convicted of a charge of failing to keep proper register of dangerous drugs and was fined $8,000.

2) Eleven types of drugs were involved namely,

(1) Diazepam

(2) Chlordiazepoxide

(3) Bromazepam

(4) Midazolam

(5) Methadone

(6) Lorazepam

(7) Alprazolam

(8) Amfepramone

(9) Nitrazepam

(10) Flunitrazepam

(11) Phentermine

The total quantity was over 18,362 tablets.

3) He was removed from the General Register on 23 August 2001 for two months.

6.     Dr. Yeung Chiu Yin, Vincent (Decision of the Medical Council : 24/4/2003)

1) Dr. Yeung was convicted of one charge of failing to keep a proper record of dangerous drugs and was fined $55,000.  Seven types of drugs were involved :

(1) Phentermine

(2) Flunitrazepam

(3) Diazepam

(4) Midazolam

(5) Diethylpropion

(6) Methadone

(7) Dipipanone

The discrepancies were over 7,800 tablets or capsules.

2) He was removed from the General Register on 24 April 2003 for three months.

Reported cases of the courts

39.There are, of course, reported cases of the courts on the penalty of removal for failure to keep a proper register.

1. Dr. Lai Chung Lim, Peter v. Medical Council of Hong Kong

A fine of $10,000 was imposed on conviction.  A three months removal from the General Register was imposed by the Medical Council.  It was not apparent from the report, about the quantity of drugs involved.

This Court affirmed the decision.

2. Ng Mei Sin v. The Medical Council of Hong Kong

The doctor failed to keep proper records of eight different dangerous drugs.  She was convicted and fined $20,000.  She faced two charges before the Medical Council.  First, the conviction for the eight offences and second, professional misconduct in prescribing drugs other than in bona fide treatment.  The quantity of drugs about which no proper record was kept was 40,000 tablets.  But there were records described as ‘somewhere or another’ of all the drugs held save for five tablets out of that 40,000.

The Medical Council ordered her to be removed from the General Register for three years.

This Court substituted the penalty with a removal for three months, suspended for a year.

3. Dr. Mao Chun Ting v. The Medical Council of Hong Kong Three types of drugs were involved

1) methadone

2) dipipanone (sold under the brand name of Wellconal)

3) physeptone (a brand name under which methadone is sold.

All three drugs were used for the treatment of heroin addicts.

The deficiencies of the records were :

'(i) The day books failed to record the addresses of the persons to whom the drugs were supplied;

(ii) No “separate book” was kept as required by regulation 5(2)(b); and

(iii) There was no register or registers in the statutory form.'

40.The Court affirmed the Medical Council’s penalty of removal from the General Register for three months.  But suspended the penalty for two years.

Observation from the cases

41.From the review of the cases, the following observations can be made :

1)   The penalty of removing the name of the doctor from the General Register was normally the penalty imposed in this type of charge.  This had been described as a ‘hardline view’ in Dr. Mao Chun Ting. 

2)   In my view any form of penalty on a professional person is by itself a heavy sentence because his or her professional reputation is forever blemished.  However, if the medical community is of the view that suspension from practice is the only way of dealing with transgressions of this type, then the type of the sentence imposed by the Medical Council is something I will accept because as Mortimer JA observed in Ng Mei Sin,

'Those who have the privilege of practising medicine by being registered here in Hong Kong have the duty to discover their obligations to record dangerous drugs and to comply with them.'

3) However, what is confusing is the criterion adopted by the Medical Council for the period of removal.  A period of removal for two to three months is generally imposed but within this range, the quantity of drugs may vary greatly.  For example Dr. Tsang Kuen Pong was removed for two months where the drugs were over 18,362 tablets.  Dr. Yeung Chiu Yin was removed for three months where the drugs were over 7,800 tablets.  When it comes to over 1,590,000 tablets, the removal was only six months in Dr. Young Ka Lam, Kenneth’s case.  The nature of the drugs was not dissimilar.  This clearly shows that the Medical Council has not been guided by any stated principles when it comes to the length of sentence.

4) The Medical Council has also suspended the removal for a period of one to two years provided that the doctor would not commit an offence during this period.  While in principle I have no difficulties with this approach because obviously a balancing act has to be performed between punishing the doctor for the breach on the one hand and taking into account the nature of the breach involved on the other hand, there has not been any clear criterion on the circumstances to which a suspension should be given on the removal.  In Dr. Sung Kei Yu’s case, a suspension of one year was given where large quantities of drugs of over 6,800 tablets were involved.  Whereas in Dr. Chan Chuen Kin’scase, a two year suspension was given for 2,846 tablets.  A one year suspension was given to Dr. Ching Chi Sau’scase where the drugs were of the similar quantity, i.e. 3,000 tablets.  Although this is not an issue that arises in this appeal, this further highlights the lack of consistency by the Medical Council.

Relevant factors

42.I would suggest the following are some of the relevant factors in considering the length of the removal :

1.   What was the reason for not keeping proper record.  Was it due to either a mistake or laxity in the administration of the clinic on the one hand or a deliberate flaunting of the statutory requirement on the other hand.  An example of the latter is in Dr. Young’s case where records were simply not kept.  While mistake and laxity in administration are not excuses in failure to keep proper records, they are clearly relevant factors when it comes to the length of removal.

2.   The quantity of drugs of which proper record has not been kept is obviously another relevant factor.  For example the amount of drugs in Dr. Young’s case is staggering which prompted Mr. McCoy to describe him as being involved with drug trafficking.  This description is not inappropriate.  In other less extreme cases, a large discrepancy may indicate a greater degree of inattention being paid to the requirement of keeping proper records.

3.   The nature of the drugs is also relevant.  For example are the drugs addictive in nature?

4.   Are there evidence that the doctor is selling addictive drugs without prescription for profit?

43.The list is, of course, not exhaustive and other factors may well be relevant in the circumstances of an individual case.

Penalty excessive

44.Adopting this approach and considering the recent decisions of the Medical Council, I have to say the penalty imposed on the appellant in this case was excessive :

1)  The defects in the records of the appellant were due to administrative laxity.  The appellant did not deliberately ignore the need to keep proper records.

2)  Although the quantity of drugs was large, considering the two months removal in Dr. Tsang’s case with 18,362 tablets and the six months removal in Dr. Young’s case with 1,590,000 pills, the nine months removal in the present case where the drugs in question were about 49,000 is unduly harsh.

3)  The major discrepancy was attributed to the 30,000 tablets of phentermine which the appellant said was due to a wrong entry by the nurse who mistakenly recorded 54,488 tablets instead of 24,488 tablets.  The magistrate did not conduct an inquiry to ascertain the truthfulness of the assertion.  He merely stated such a mistake was not an excuse.  While it is accepted that the mistake does not excuse the wrong doing, obviously it was a relevant factor when it comes to the degree of culpability for the purpose of sentence.  The Medical Council likewise did not conduct a similar inquiry on this topic.  The recent case Privy Council decision of Campbell v. Hamlet [2005] 3 All ER 1116 stated in disciplinary proceedings concerning the legal profession, the criminal standard of proof was to be applied.  I see no justifiable reason why this should not apply to disciplinary proceedings conducted by the Medical Council.  This means the Medical Council must ascertain the truthfulness of this claim first before it proceeded to sentence.  

4)  While some of the drugs in question were described as addictive, they were not dissimilar with the drugs in the other cases.  They were in the nature of sleeping pills, slimming pills and anti-anxiety pills.

5)  There was no suggestion that the appellant was engaged in any wrong doing in respect of the disposal of the drugs and the Medical Council has not indicated what other special factors, if any, it has taken into account in imposing the present sentence. 

6)  Even proceeding on the basis that the discrepancy here was 49,000 pills the sentence was still unduly harsh.  I fully accept that sentencing is not simply applying some arithmetic formulae but ultimately the sentence must be a balanced one and fits the crime.  A disciplinary body like the Medical Council which wields tremendous power of punishment over its members should exercise this power with circumspection and in accordance with stated principles.  Otherwise the punishment it imposes becomes arbitrary.  The decisions which I have summarised clearly revealed that the Medical Council has not adopted any clearly defined guidelines on the length of sentence for this type of transgression.  It is precisely for this reason that I say that the sentence imposed on the appellant was unduly harsh.

The proper penalty

45.In my view, the appropriate penalty is six months removal from the General Register. 

The alternative view

46.I would like to add that even if one is to adopt the more stringent approach decided in the previous decisions, the nine months removal is still out of tune with the other similar decisions.  A six months removal should be imposed.

My conclusion

47.For my part, I would allow the appeal and substitute the penalty with an order that the appellant be removed from the General Register for a period of six months.

Hon Yuen JA :

Relevant facts

48.On 19 June 2003, Dr Lau Koon Leung pleaded guilty before a magistrate to 47 counts of failing to keep proper records of dangerous drugs, contrary to Regulations 5(1)(a) and 5(7) of the Dangerous Drugs Regulations (Dangerous Drugs Ordinance Cap.134).

49.Dr Lau is a specialist in psychiatry practising at two clinics.  The Health Department had visited the clinics in November 2002 for compliance inspections.  Discrepancies were found at both clinics.  Of the 47 counts, 26 counts related to his Tuen Mun clinic and 21 counts related to his Mongkok clinic.

50.The particulars of Dr Lau’s offences were that:

(1)   he failed to record the identity card numbers of patients to whom drugs were supplied;

(2)   there were unauthorized alterations to the drugs registers - done by means of correction fluid instead of dated margin or foot notes - in 23 instances at the Tuen Mun clinic and in 17 instances at the Mongkok clinic;

(3)   there were discrepancies between the actual stock of drugs and the balance recorded in the drugs registers at both clinics. 

51.In respect of the discrepancies, drugs of different forms and strengths were involved.   At the Tuen Mun clinic, the discrepancies involved 26 drugs, and at the Mongkok clinic, the discrepancies involved 19 drugs.  The discrepancy comprised in some cases of a shortfall of tens of thousands of pills.  The drugs involved were sleeping pills, slimming pills and pills to relieve symptoms of anxiety. 

52.In May 1996, the maximum penalties for the offence in question under the Dangerous Drugs Ordinance had been substantially increased, with fines of up to $450,000 and imprisonment of up to 3 years. 

Sentence

53.As Cheung JA has narrated in his judgment, Dr Lau was eventually fined a total of $117,500 by the court. 

Medical Council Inquiry

54.On 14 July 2004, before the Medical Council, Dr Lau’s legal representative submitted that none of the drugs was addictive or could be used by addicts in association with heroin. 

55.It was further submitted that there were simply administrative failings and that these were merely technical breaches.

Order of the Medical Council

56.The Council expressly did not accept the submission that these were merely technical breaches.  Nor did it accept the submission that none of the drugs involved was addictive.  The Council in particular noted the "extraordinarily large" quantity of drugs involved in the discrepancies.

57.The Council ordered Dr Lau to be removed from the General Register for 9 months.

Appeal from Medical Council

58.When Dr Lau lodged his appeal from the Council’s order, the grounds of appeal were that the sanction imposed was (1) manifestly excessive or wrong in principle and (2) out of line with the prevailing regime as indicated by other decisions of the Council or the appeal courts.

59.However when this appeal was heard on 30 September 2005, it became apparent from Mr McCoy’s submissions that his arguments went beyond the parameters indicated in the grounds of appeal.  Supplemental written submissions were subsequently provided by both counsel, and the Medical Council also provided at the Court’s request some further materials concerning previous cases.

Appellant’s submissions

60.As I understand them, Mr McCoy’s arguments were as follows:

(1)  Section 26(1) Medical Registration Ordinance provides that on appeal by a doctor aggrieved by an order of the Medical Council, the Court of Appeal "may thereupon affirm, reverse or vary the order appealed against ...".  This provision gives the Court of Appeal very wide powers.

(2)  However, the Court of Appeal has in previous decisions imposed a "self-fetter" on its powers to interfere with orders made by the Medical Council.  This "self-fetter" originated from the Privy Council decision in Libman that the findings of a professional disciplinary tribunal should not be disturbed unless sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence was misread.  This is an approach which has been followed in a number of decisions of this court starting with Keeson Shum (an appeal from conviction of a disciplinary charge) and Ng Mei Sin (an appeal from a penalty).

(3)  In recent cases however (Ghosh and Preiss), in view of the argument that disciplinary proceedings against professional persons involve a determination of their civil rights and therefore attract the protection of Article 6(1) of the European Convention for the Protection of Human Rights, the Privy Council has held that the observation in Libman set out above can no longer be taken as definitive. 

Discussion - is this court bound by Ng Mei Sin?

61.Privy Council decisions such as Ghosh and Preiss are no longer binding on the courts of Hong Kong although they are of course of high persuasive authority.  The Court of Appeal of Hong Kong is however bound by its own decisions and Ng Mei Sin was a decision of this court.  The first question then is whether this court is bound to apply the Libman approach as that had been applied in Ng Mei Sin.

62.I take the view that this court should be ready to depart from its own decisions when a previous decision was influenced by Privy Council decisions on English law which has since developed.  I cannot conceive that the interests of justice could be served otherwise. This is especially so where a decision of this court is the final appeal (as it is under s.26(2) Medical Registration Ordinance, subject to possible arguments that may be advanced in the future by analogy with the "final appeal" provision in the Legal Practitioners Ordinance: see  Solicitor v The Law Society of Hong Kong and Secretary for Justice [2003] 6  HKCFAR 570).

Discussion - approach to penalty ordered by Medical Council

63.Mr McCoy submitted that this court should no longer apply the Libman threshold on appellate intervention in light of Ghosh and Preiss.  However I think that may be too broadbrush an approach for this appeal.  This appeal is concerned, and concerned only, with the penalty ordered by the Medical Council, and this aspect must be borne in mind when we consider the approach that we should take.

64.The abandonment of the Libman approach by the Privy Council in Ghosh and Preiss is easily understood when we trace the history of this approach in relation to findings of misconduct, sometimes referred to as "conviction". 

65.In Libman, the doctor concerned had been found guilty of serious professional misconduct and was suspended.  He asked the Privy Council to deal with the appeal as if it were the Criminal Division of the Court of Appeal. 

66.The Privy Council acknowledged the generality of the language in the statute giving it appellate jurisdiction, but it held that “the actual exercise of the jurisdiction is severely limited by the circumstances in which it can be invoked” (220G-H). 

67.One of the circumstances was that

“beyond a bare statement of its findings of fact, the Disciplinary Committee does not in general give reasons for its decision” (221A-B) (Emphasis added).

It was because of this that the Privy Council held that it could not displace a finding or order of the Committee unless it could be shown that something was clearly wrong either (i) in the conduct of the trial; or (ii) in the legal principles applied; or (iii) unless it could be shown that the findings of the Committee were “sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread” (221E-F). 

68.Since then, with the courts urging on the disciplinary tribunals to provide reasons for their decisions  (see e.g. Dr Ip Kay Lo Vincent v Medical Council of Hong Kong [1999] 1 HKLRD 491, 504; Dr Wu Hin Ting v Medical Council of Hong Kong [2004] 2 HKC 367, para. 34) and the emphasis on protection of human rights, it is not surprising that the Libman approach has been regarded as too restrictive.

69.However, at the same time, it should be noted that the courts remain cautious when it comes to appeals from orders of penalties.  In Ghosh, the Privy Council recognized that “it is true that the Board’s powers of intervention may be circumscribed by the circumstances in which they are invoked, particularly in the case of appeals against sentence” (para. 34).

70.The reasons for caution in appeals against penalties have been repeated in a number of authorities e.g. Peatfield v General Medical Council [1986] 1 WLR 243, Ng Mei Sin, Chow Siu Shek.  In Evans v General Medical Council, quoted in Ghosh, it was held:

“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” (para. 34) (Emphasis added).

71.Whilst the Privy Council in Ghosh asserted a wide jurisdiction on hearing the doctor’s appeal from her penalty to decide whether it was appropriate or was excessive or disproportionate, it affirmed the reasons for caution explained in Evans and said that for those reasons, it would accord an “appropriate measure of respect to the judgment of the committee” (para. 34). 

72.Putting the words of the Privy Council in Evans and Ghosh into practice, I do not think this court should interfere in the present appeal.

73.First, the doctor through his legal representative sought to suggest before the Medical Council that the drugs involved were not addictive.  That was expressly rejected by the Council.  There is no suggestion before this court that the Council was wrong.  I consider that the fact that these pills were addictive renders this a serious case.

74.Secondly, the discrepancy of these addictive pills in this case ran into the tens of thousands, whether or not the 30,000 pills were included.  Even if one were to exclude the 30,000 pills, the Medical Council was still entitled to describe the discrepancy as an “extraordinarily large quantity” considering that the usual prescription, according to Dr Lau’s records, was only 14 pills.  Mr McCoy accepts on Dr Lau’s behalf that the discrepancies (even excluding the 30,000 pills) were still significant.  In the circumstances, I do not consider that by not referring to the nurse’s entry for the 30,000 pills, the Council had failed to take a relevant matter into consideration when it imposed the penalty.

75.Thirdly, I am not persuaded that the sanction imposed by the Council was so excessive or disproportionate that this court should intervene.  I have considered the further materials provided by the Medical Council.  They span over a period of time and various circumstances, and as the Privy Council recognized in Ghosh, this court should accord respect to the Council when it decides “what measures are from time to time required for the purpose of maintaining professional standards”.

(1)  The penalty imposed in this case is within the type of penalty properly and usually ordered for this type of offence.  Mr McCoy accepts that suspension is clearly called for.  

(2)  The quantum of penalty is also within the range of penalties for this type of offence.  I do not think this court should treat penalties imposed by the professional bodies on their members as sentences given by lower courts in dangerous drugs offences, where the courts consider guidelines on starting points for different types of drugs etc.  Where, as in this case, six months suspension may be regarded as unremarkable, nine months suspension is not so excessive as to warrant this court interfering with the Council’s order.  The professional body must enjoy a margin of discretion when it comes to deciding what it considers necessary at the time to maintain professional standards.

76.Fourthly, even if I were to consider the penalty without according the necessary respect to the judgment of the Council, I would not reduce the period of suspension in this case.  The proper keeping of records of dangerous drugs - especially addictive drugs - is essential in the public interest.  Doctors have an obligation to ensure that proper records are kept so that the location of addictive drugs can be tracked.  In the present case, the discrepancies were not in respect of 1 or 2 forms of drugs where, once one mistake is made, it is carried forward because of the omission of regular stock-taking.  The discrepancies here, of tens of thousand of pills, range over a wide range of drugs in different forms and strengths and at both clinics.  Given the quality of drugs and quantities involved, it was a very serious failure of duty on Dr Lau’s part and he must be prepared to take the consequences.  In these circumstances, I cannot say that 9 months suspension was excessive.  I would dismiss the appeal and order that the costs of the appeal follow the event, in other words, that Dr Lau should bear the costs of the appeal.

Hon Lam J :

77.I agree with Yuen JA that the appeal should be dismissed.  I also agree with the reasons given in Her Ladyship’s judgment.

78.Under the new approach espoused in Ghosh and Preiss, the appellate court will continue to accord respect to the opinion of the professional tribunal on technical matters although the degree of deference will depend on circumstances.

79.Having regard to the legislative objective pertaining to self-regulation in the exercise of disciplinary jurisdiction, it is important to remind ourselves that the primary responsibility of professional discipline is vested by the legislature in the hands of peers who had specialized knowledge.  Even if we were to adopt a more liberal approach, judicial statements in previous cases to this effect (Mortimer JA in Ng Mei Sin v The Medical Council [1995] 1 HKC 242 at p.245; Bokhary JA in Dr Chow Siu Shek v The Medical Council [1995] 2 HKC 527 at p.533; Litton VP in Mao Chun Ting CACV 182 of 1995, p.8; Rogers VP in Peter Chan v Hong Kong Society of Accountants [2001] 1 HKLRD 687 at p.696) are still good law.

80.In the context of the present appeal, the key issue is whether this court has any valid ground to interfere with the sentence imposed by the Medical Council.  Mr McCoy SC suggested that the sentence was excessive and disproportionate.  I respectfully agree with the analysis of Yuen JA and the Appellant had failed to persuade me that a 9 months’ suspension is excessive or disproportionate to the offences having regard to the circumstances of the case.

81.Having reached such a conclusion, even though the sentence is not lenient by comparison with other cases placed before us, I do not think that by itself warrants interference by this court.  After all, the ultimate question is whether the sentence is appropriate for the offences for which the Appellant was convicted.

82.I also agree with the order proposed by Yuen JA.

Hon Cheung JA :

83.By a majority the appeal is dismissed with costs nisi to the respondent.

Mr. Gerard McCoy, S.C., instructed by Messrs Richards Butler, for the Appellant

Mr. Sanjay Sakhrani, instructed by Department of Justice, for the Respondent